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Other  Books 
By  The  Same  Author 

Practical  Banking  (11th  edition) 

Banks  and  their  Depositors 

Bank  Officers 

Bank  Collections 

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The  Suspension  of  the  Power  of 
Alienation 


The 

Business  Man's  Legal 
Adviser 

Volume  I 

The  Ownership  and  Use  of  Land 

including 

Its  acquisition  by  Deed,  Descent,  Will,  Occupancy, 

Prescription,  Public  Grant ;  also  Life  Interests, 

and  Rights  of  Married  Men  and  Women. 

of  Homestead  Owners,  of  Landlords 

and    Tenants ;    Leases,    Joint 

Ownership  and  Joint  Use 

By 

ALBERT  S.  BOLLES,  Ph.  D.,  LL.  D. 

Lecturer  on  Commercial  Law  and  Banking 

in  Haverford  College;  formerly  Professor 

of  Mercantile  Law  and  Banking  in 

the  University  of  Pennsylvania 


VUBUSHED  BY 

DOUBLEDAY,  PAGE  &  COMPANY 

ros 

THE  REVIEW  OF  REVIEWS  COMPANY 

1913 


Copyright,  1905,  by 
Doubleday,  Page  &  Company 

Copyright,  191 1,  by 
Doubleday,  Page  &  Company 

T 
«913 


is 


try 


a 

TO    THE 

HON.  MERLIN  E.  OLMSTED,  M.  C. 

EIGHTEENTH  DISTRICT  OF  PENNSYLVANIA 

WHOSE  EMINENCE  AS  A  LAWYER  HAS  BEEN  FITLY 

Oj     CROWNED  BY  HIS  SUCCESS  AS  A  NATIONAL  LEGISLATOR 


398271. 


CONTENTS 

Litroduction ix 

CHAPTER  PAGE 

I.    What  is  Land,  or  Rejil  Property         ...  3 
n.    Entire  Ownership  of  Land: 

1.  By  Citizens    ......  16 

2.  By  Aliens;  Citizenship    ....  22 

III.  Modes  of  Entire  Ownership: 

1.  Acquisition  of  Land  by  Purchase.    Deeds 

2.  Acquisition  of  Land  by  Descent 

3.  Acquisition  of  Land  by  Will 

4.  Acquisition  of  Land  by  Occupancy  and 

Prescription         .... 

5.  Acquisition  of  Land  by  Accretion 

6.  Acquisition  of  Land  by  Public  Grant 

7.  Acquisition  of  Title  by  Estoppel 

8.  Abandonment  of  Land     . 

9.  Acquisition   of   Land   by  Legal   Process, 

Attachment  and  Execution  .         .       12& 

IV.  Modes  of  Limited  Ownership: 

1.  By  Tenant  or  Occupant  for  Life 

2.  By  Husband  as  Tenant  by  the  Curtesy 

3.  By  Widow  as  Dower 

4.  By  Homesteaders    .... 

5.  By  Lease;  Landlord  and  Tenant 

6.  Tenancy  from  Year  to  Year     . 

7.  Tenancy  at  Sufferance     . 

8.  By  Joint  Tenants  and  Tenants  in  Com' 

men 331 


42 
86 
93 

107 

"5 
118 
121 
127 


ISO 
163 
167 

173 
178 
225 
229 


INTRODUCTION 

1.  Different  goveraments  under  which  the  people  live. 

2.  Public  and  private  laws. 

3.  Both  apply  to  many  acts. 

4.  But  not  in  an  unvarying  manner. 

5.  Threefold  division  of  the  law  defining  private 
,         rights  and  duties. 

6.  Ignorance  of  the  people  respecting  them. 

7.  Why  the  law  is  generally  obeyed. 

8.  Consequences  of  failure  to  know  the  law. 

9.  Purpose  of  this  work.  * 

10.  Origin  of  legal  rules. 

11.  Custom  or  usage. 

12.  Judge-made  law. 

13.  Statutes. 

14.  Interpretation  of  statutes. 

1.  Every  individual  in  our  country  lives  imder  three 
forms  of  government  —  national,  state,  and  local;  and 
his  rights  and  duties  as  a  member  of  each  are 
defined  by  constitution,  by  statute  and  by  common 
law. 

2.  Besides  the  laws  defining  the  legal  relations  which 
exist  between  government  and  its  members  are  other 
laws  defining  the  legal  relations  between  the  people 
themselves.    These  laws  are  very  numerous  and  in 

ix 


jr  INTRODUCTION 

many  respects  touch  the  people  more  closely  than  the 
laws  defining  their  public  relations. 

3.  Many  of  the  acts  of  individuals  are  double- 
sided — are  both  public  and  private.  Thus,  should  the 
cashier  of  a  bank  rob  it,  he  would  be  a  debtor  to  the 
institution  for  the  money  stolen;  also  a  wrong-doer 
to  the  public  and  answerable  for  his  offence.  Even 
if  he  should  become  repentant  and  refund  the  money 
stolen,  he  would  be  just  as  liable  as  before  to  arrest, 
trial  and  condemnation.  It  is  true  that  the  officers 
of  a  bank,  after  such  an  offence  has  been  committed, 
are  often  willing,  for  the  sake  of  recovering  a  por- 
tion, or  all,  of  the  property  stolen,  to  overlook  the 
misdeed  and  to  protect,  as  far  as  they  can,  the  crim- 
inal from  pimishment.  In  truth,  they  cannot  give 
any  legal  protection;  but  they  may  darken  the 
pathway  of  the  public  prosecutor  by  withholding 
testimony. 

Another  illustration  may  be  given.  A  assaults  B, 
boxing  his  ears.  The  wrong-doer  is  liable  to  B  for  the 
damage,  the  payment  of  money,  which  is  the  legal  balm 
for  the  wound  —  often  a  poor  medicine,  but  the  most 
effective  the  law  can  prescribe.  Yet  A,  however  pri- 
vately he  may  have  acted  in  assaulting  B,  has  com- 
mitted a  public  offence,  and  no  settlement  with  the  in- 
jured man  can  prevent  the  state,  through  the  public 
prosecutor,  from  arresting,  trying  and  convicting  him 
for  his  misdeed. 

The  individual,  or  private  remedy,  which  consists  in 
recovering  money  for  the  injury  done,  is  called  the  civil 
remedy;  the  public  action  or  prosecution  by  the  state, 


INTRODUCTION  xi 

the  criminal  remedy,  and  may  result  in  imprisonment, 
or  fine,  or  both. 

4.  This  double-sidedness  of  human  action  from  the 
legal  point  of  view  covers  a  large  breadth  of  human 
conduct,  but  is  not  unvar5dng.  The  state  may  declare 
a  misdeed,  for  which  only  a  money  damage  could  pre- 
viously be  recovered,  to  be  a  public  or  criminal  offence, 
and  punishable  in  the  same  manner  as  other  public 
offences.  Thus,  not  many  years  since,  the  buyer  of 
merchandise  who  misrepresented  his  wealth  for  the 
purpose  of  obtaining  credit  was  liable  only  in  a  private 
action  for  the  damage  or  injury  caused  by  his  deceit; 
now,  very  generally,  he  can  be  tried  and  punished  as  a 
criminal.  On  the  other  hand,  criminal  offences  are 
sometimes  abolished;  pimishments  especially  are  les- 
sened. That  the  consequences  of  wrongful  conduct 
are  seen  with  ever-increasing  clearness  to  affect  the 
public,  as  well  as  one  or  more  particular  individuals, 
and  therefore  to  be  deserving  of  proper  legal  con- 
demnation, while  pimishment  for  many  of  the  older 
offences  are  observed  to  be  diminishing  in  severity,  are 
sure  marks  of  advancing  wisdom  in  administering  justice. 

5.  The  private  rights  and  duties  of  individuals  per- 
tain to  the  acquisition,  use,  and  disposition  of  property; 
to  the  association  of  individuals  in  various  ways  for  the 
same  purpose;  and  to  the  establishment  and  mainte- 
nance of  social  and  industrial  relations.  Hence  the  law 
defining  these  rights  and  duties  has  a  threefold  division. 
The  larger  division  defines  the  rights  and  duties  of 
individuals  in  acquiring,  using,  and  disposing  of  their 
property;  a  second  division,  of  rapid  growth  and  im- 


jai  INTRODUCTION 

portance,  defines  the  rights  of  individuals  to  associate  as 
partners,  corporators,  and  in  other  ways,  to  hold,  use, 
and  enjoy  property;  while  a  third  division  defines  the 
rights  of  individuals  to  form  social  relations,  such  as 
husband  and  wife,  as  master  and  servant,  and  the  like, 
and  then  defines  their  rights  and  duties  with  respect  to 
their  conduct,  their  contracts,  the  acquisition  and  en- 
joyment of  their  wealth.  The  private  rights  and 
duties  of  individuals,  thus  outlined,  it  is  our  purpose  to 
set  forth  in  the  following  pages. 

6.  In  executing  the  law,  the  oflBcers  of  the  govern- 
ment assume  that  every  man  knows  it;  he  cannot,  there- 
fore, shield  himself  by  confessing  his  legal  ignorance. 
Nevertheless  the  laws  are  so  numerous  and  conflicting 
that  not  all  are  known,  even  by  the  most  intelligent 
men.  In  truth,  only  a  few  of  the  laws  are  known 
generally  by  the  people. 

7.  Why,  then,  are  not  infractions  more  frequent? 
The  answer  is,  that  the  intelligence  and  good  sense  of 
the  people  lead  them  to  pursue  a  course  of  conduct  in 
harmony  with  the  law;  so,  without  actual  knowledge, 
they  walk,  for  the  most  part,  in  the  straight  legal  paths. 

8.  Yet  there  are  many  occasions  when  one's  intelli- 
gence utterly  fails  to  discover  the  legal  rule.  On  these, 
the  sure  path  can  be  known  only  by  inquiry.  For  this 
reason,  an  actual  knowledge  of  the  law  is  a  daily  ne- 
cessity to  escape  unintentional  wrongdoing.  The  non- 
possessor  who  relies  on  his  sense  of  right  is  sure  to  fall 
into  unhappy  and  costly  errors.  For  example,  a  person 
who  receives  a  check  from  another  is  required  by  law 
to  present  it  to  the  bank  on  which  it  is  drawn,  within  a 


INTRODUCTION  xiii 

specified  time,  for  payment.  A  receiver  who  disre- 
gards this  rule  and  retains  the  check  for  a  longer  period, 
as  is  often  done  through  forgetfulness,  assumes  the 
risk  of  loss;  and,  should  the  bank  on  which  the  check 
is  drawn  fail,  he  cannot  go  to  the  person  who  gave  it  to 
him  and  ask  for  another.  How  long  then  can  he  keep 
it  without  releasing  the  drawer?  One's  sense,  however 
keen,  can  never  answer  the  question.  Only  by  actual 
knowledge  of  the  legal  rule  can  the  receiver  know  how 
long  he  can  safely  retain  the  check  and  hold  the  drawer 
or  maker  liable.  Nothing  less  than  an  actual  knowl- 
edge of  the  law,  therefore,  can  serve  as  a  sure  guide  for 
individuals  in  their  conduct  with  one  another  in  their 
business  and  other  relations. 

g.  In  this  work,  it  is  our  purpose  to  state  all  the  more 
important  legal  rules  or  principles  that  apply  to  persons 
individually,  or  to  those  who  are  associated  with  others 
in  the  ways  recognised  by  society.  It  is  not  our  pur- 
pose to  state  every  rule;  for  this  would  be  quite  im- 
possible. Besides,  the  law  is  a  vast  body  of  rules,  that, 
like  the  sea,  are  never  at  complete  rest.  Courts  and 
legislatures  are  always  changing  them;  hence  no  man 
at  any  particular  moment  of  time  can  ever  present  a 
complete  exposition.  But  we  assume  that  the  intelli- 
gent members  of  society,  both  men  and  women,  are 
desirous  of  knowing  what  they  can,  and  cannot,  do  in 
the  numberless  relations  of  daily  life;  and  the  most  im- 
portant and  abiding  of  these  rules  it  will  be  our  pur- 
pose to  describe. 

lo.  Whence  are  the  legal  rules  that  apply  to  us  de- 
rived?   First,  they  may  be  divided  into  two  kinds  or 


jdv  INTRODUCTION 

classes:  statutes  and  common  law  principles.  The 
statutes  are  enacted  by  legislative  bodies;  the  common 
law  rules  are  emanations  of  judicial  tribunals.  From 
what  source  do  the  courts  obtain  them;  are  they  law- 
makers as  well  as  administrators  of  the  law? 

11.  The  first  and  most  important  source  is  custom. 
A  farmer  once  sold  a  mill  owner  a  large  quantity  of 
timber,  for  which  the  seller  was  to  be  paid  a  stipulated 
price  per  foot.  After  the  timber  was  cut  and  delivered 
at  the  place  appointed,  a  day  was  set  for  measuring  it. 
The  farmer  was  surprised  on  learning  that  the  buyer 
proposed  to  apply  a  mode  of  measurement  quite  un- 
known in  the  vicinity,  which  would  lessen  the  quantity 
about  one-fifth.  He  declined  to  accept  that  mode  of 
measuring,  and  a  lawsuit  resulted.  Had  the  parties 
agreed  to  a  specific  mode  of  measurement,  of  course 
they  would  have  been  bound  thereby;  not  having  done 
so,  the  court  declared  that  it  must  have  been  their 
intention  to  be  governed  by  custom;  therefore,  the 
question  for  the  court  to  ascertain  was,  what  custom 
prevailed.  In  time,  this  was  clearly  found  out  and 
declared,  and  it  thus  became  a  rule  of  law.  Very  many 
of  the  rules  of  the  common  law  have  their  origin  in  this 
manner.  They  rest  on  custom  which,  through  proper 
inquiry,  is  clearly  ascertained  and  declared  to  be  bind- 
ing on  all  the  persons  within  a  state,  where  the  custom 
Is  general;  or  within  a  narrower  jurisdiction,  where  the 
custom  is  local. 

12.  Another  source  of  the  common  law  is  the  court 
itself.  There  are  many  occasions  in  which  no  rule  of 
law  exists  to  apply  to  a  particular  set  of  circumstances. 


INTRODUCTION  xv 

This  is  especially  so  with  respect  to  questions  growing 
out  of  new  business  relations;  the  use  of  the  telephone 
and  the  telegraph,  for  example.  A  few  years  ago 
there  were  several  questions  of  this  nature  resulting 
from  the  use  of  the  bicycle.  To  some  of  them,  old 
principles  were  applied;  to  others,  the  courts  adopted 
such  rules  as  the  exigency  required.  In  so  doing,  the 
courts  did  not  pass  beyond  their  proper  function;  yet 
they  make  laws  as  truly  as  legislators  in  Congress,  and, 
were  they  not  endowed  with  this  right,  society  would 
suffer. 

13.  Besides  these  two  great  sources  of  the  common 
law,  we  have  also  mentioned  the  statutes,  some  of  which 
modify  the  rules  of  the  common  law;  others  are  an 
addition  to  them.  Recently,  a  statute  has  been 
adopted  in  about  twenty-five  states  regulating  the  law 
of  negotiable  instruments.  In  most  regards,  this  law 
is  founded  on  the  common  law,  and  is  in  harmony 
therewith;  but,  whenever  adopted,  it  supersedes  the 
common  law;  and  henceforth  individuals  living  in  those 
states  must  look  to  that,  so  far  as  it  can  serve  as  a 
guide,  and  no  longer  t;o  the  common  law  that  existed 
before  its  enactment. 

14.  Lastly  may  be  mentioned  legal  decisions  that  are 
interpretations  of  statutes.  There  are  many  of  these. 
Some  statutes  are  the  cause  of  constant  questioning  and 
answers.  No  statute  can  be  written  so  plainly  as  to 
preclude  all  possibility  of  dispute.  Such,  in  brief,  are 
the  sources  of  the  legal  rules  that  are  to  be  set  forth  in 
this  work  for  the  benefit  of  all  who  wish  to  know  their 
legal  rights  and  duties. 


THE  HOME  LIBRARY  OF  LAW 


'    CHAPTER  I 
WHAT  IS   LAND,  OR  REAL  PROPERTY 

1.  Difficulty  in  defining  land. 

2.  The  importance  of  understanding  the  difference 

between  real  and  personal  property. 

3.  Real  property  is  land, 

4.  When  ice  is  land. 

5.  Things  annexed  by  man. 

6.  Growing  crops.    What  rule  applies  between  seller 

and  purchaser. 

7.  The  rule  that  applies  to  a  devisee. 

8.  When  growing  trees  are  personal  property. 

9.  Trees  standing  on  a  division  line. 

10.  Things  easily  removed. 

11.  Surface   and   mine   below,    owned   by   different 

persons. 

12.  Land  of  a  corporation. 

13.  Church  pew. 

14.  Cemetery  lot. 

15.  When  money  is  real  property. 

16.  Intention,  in  determining  the  question  of  the  value 

of  property. 

17.  Use,  in  determining  the  question. 

18.  Different   rules   apply   to   persons    in    different 

relations. 


4      BUSINESS    MAN'S    LEGAL   ADVISER 

1.  Property  falls  into  two  great  divisions,  real  and 
personal;  and,  while  the  differences  between  them  on 
the  outer  boundaries  are  clearly  seen,  as  they  approach 
each  other  these  differences  lessen  until  one  is  in  doubt 
whether  a  particular  thing,  for  example,  a  cooking- 
range  in  a  house,  is  real  or  personal  property.  Never- 
theless, as  both  kinds  of  piroperty  exist,  we  must  seek 
to  show  what  they  are. 

2.  Why  is  this  knowledge  important?  A  stranger, 
by  the  permission  of  a  land-owner,  builds  a  house  on  his 
land.  There  may  be  some  agreement  between  them 
concerning  it,  though  not  in  writing.  The  land-owner 
sells  the  land,  and  the  purchaser,  soon  after  taking 
possession,  enters  the  house  and  astonishes  the  occu- 
pant by  saying  it  belongs  to  him.  After  stating  his 
agreement  with  the  seller,  the  buyer  replies  that  he 
knows  nothing  about  it;  that  he  bought  the  land  which 
includes  everything  thereon,  that  if  any  wrong  has  been 
done,  the  seller  is  the  guilty  party  to  whom  the  house- 
builder  must  look  for  redress.  Thus,  what  is  meant  or 
included  by  the  terms,  real  property  and  personal 
property,  is  important  to  all  who  are  concerned  in  their 
sale,  management,  or  ownership. 

3.  Real  property  is  land  extending  indefinitely  up- 
ward and  downward.  It  includes  every  structure  and 
everything  growing  thereon  naturally.  In  like  manner, 
all  minerals  are  included,  even  an  aerolite  that  falls 
from  the  heavens. 

4.  Ice  is  sometimes  included,  but  not  always.*  Ice 
on  a  navigable  river,  whose  bed  belongs  to  the  state, 

1  See  Chap.  IV.,  Section  11,  §  ii. 


WHAT  IS  LAND,  OR  REAL  PROPERTY     5 

belongs  to  the  first  appropriator.  This  may  be  done  by 
taking  the  ice,  or  by  clearing  off  the  snow  from  the 
surface,  marking  the  ice,  or  making  any  other  prepara- 
tion for  harvesting  the  cooling  product.  And  the  same 
rule  applies  to  ice  on  public  ponds. 

Ice  on  a  non-navigable  river  belongs  to  the  owners  of 
the  adjoining  land,  because  they  are  also  the  owners  of 
the  bed  of  the  stream.  The  line  of  division  between 
them,  which  is  presumably  the  middle  of  the  stream, 
determines  the  ownership  of  the  ice  that  forms  on  the 
surface.  To  a  navigable  stream,  owned  privately,  and 
not  by  the  state,  the  same  rule  applies  as  to  a  stream 
not  navigable. 

The  same  rule,  slightly  qualified,  applies  to  land- 
owners along  a  canal.  They,  too,  can  harvest  the  ice 
formed  on  the  water  running  through  their  land,  pro- 
viding this  does  not  interfere  with  the  public  use  of  the 
canal.  But,  when  the  state  has  condemned  and  taken  the 
land  used  for  the  canal,  it  is  the  absolute  owner,  and  the 
adjoining  proprietors  have  no  more  rights  in  the  land, 
water,  or  ice  than  they  have  in  any  other  public  property. 

5.  A.different  principle  applies  to  things  annexed  by 
man.  Many  of  these,  as  the  result  of  annexing  them, 
form  a  part  of  the  land  itself;  while  other  things  retain 
their  former  character  and  are  personal  property.  In 
the  sale  or  lease  of  land,  it  is  often  difficult  to  decide 
whether  the  things  thus  added  are  transformed  into 
realty  and  become  a  part  of  it,  or  whether  they  are  still 
personal  property  belonging  to  the  person  who  put 
them  on  the  land.* 

,'  Sec  §  §  16, 17  of  this  Chap,  and  Chap.  IV.,  Section  s,  §  33  for  a  fuller  con- 
lideraUon  of  this  subject. 


6        BUSINESS  MAN'S  LEGAL  ADVISER 

6.  Questions  often  arise  in  conveying  land  on  which 
crops  are  growing.  Do  these  pass  to  the  purchaser? 
The  more  general  rule  is,  annual  crops  planted  by  the 
seller  pass  with  the  land  on  which  they  are  growing; 
crops  that  are  mature,  awaiting  the  reaper,  do  not  thus 
pass,  unless  they  are  mentioned  in  the  deed  of  con- 
veyance.* 

Growing  annual  crops  may  be  the  subject  of  a  valid 
oral  sale,  and  the  vendee  has  an  implied  license  to  enter 
and  take  them.  Should  the  vendor  afterward  sell  the 
land  itself  and  say  nothing  about  his  prior  sale  of  the 
crops,  the  crop-buyer,  if  the  purchaser  had  come  into 
possession,  would  lose  the  right  to  enter  and  take  his 
crops.  He  would  not  be  without  a  remedy,  however, 
for  he  could  proceed  against  the  vendor,  who,  through 
accident  or  fraud,  had  deprived  him  of  the  right  to  take 
his  crops  away. 

7.  A  different  rule  applies  to  a  devisee,  or  person  who 
inherits  land  by  will.  He  takes  the  crops  with  the  land, 
whatever  be  their  state  of  maturity,  unless  they  are 
needed  to  pay  the  debts  of  the  testator.  If  they  are, 
then  they  pass  to  the  executor  like  other  personal 
property,  and  are  devoted  to  the  payment  of  the  testa- 
tor's indebtedness.' 

8.  Growing  trees  may  be  cut  down  and  thus  con- 
verted into  personal  property;  or,  on  the  sale  of  land, 
may  be  reserved  for  the  purpose  of  cutting  and  remov- 
ing them.  In  the  latter  case,  should  the  owner  die 
before  cutting  them,  the  administrator  or  executor  of 

1  Washburn  on  Real  Property,  §  n,  Vol.  I.,  p.  11  (6th  Edition). 
*  Pattison's  Appeal,   61   Pa.,  p.  494. 


WHAT  IS  LAND,  OR  REAL  PROPERTY    7 

his  estate  would  take  possession  of  them  as  a  part  of 
his  personal  property.  Again,  the  owner  of  land  who 
sells  trees  growing  thereon  to  another  by  a  proper 
written  conveyance,  with  the  liberty  to  cut  and  carry 
them  away,  parts  with  an  absolute  interest  in  them, 
while  the  .land  itself  remains  in  the  sellor  or  grantor. 

9.  What  rule  applies  to  a  tree  standing  on  or  near  the 
boundary  line,  with  roots  and  branches  extending  into 
the  land  of  the  adjacent  owner?  The  fruit  belongs  to 
the  owner  of  the  land  whereon  the  tree  grows;  and  he 
can  reach  over  and  pluck  it,  if  his  arms  are  long  enough, 
without  infringing  the  law  of  trespass.  He  can  even 
stand  on  the  fence  and  do  this.  But  he  cannot  go  on 
his  neighbour's  land,  without  permission,  for  this  pur- 
pose. If  he  did,  the  law  would  pronounce  him  a  tres- 
passer. The  reader  may  think  that  the  distinction  is 
very  fine  between  reaching  over  into  another's  land 
and  plucking  fruit,  and  going  on  another's  land  and 
plucking  it;  the  law  is  replete  with  equally  subtle  dis- 
tinctions. If  the  first  rule  be  true,  the  reader  may  ask, 
what  becomes  of  that  greater  rule  stated  in  the  be- 
ginning, that  land  includes  everything  above  and 
below?  On  the  other  hand,  the  adjacent  owner  has  a 
right  to  lop  off  the  branches  and  roots  of  a  tree  to  the 
dividing  line. 

The  body  of  a  tree  that  happens  to  stand  on  the 
dividing  line  is  the  common  property  of  both;  neither 
can  cut  it  down  without  the  other's  consent;  nor  even 
cut  away  the  portion  on  his  own  land,  should  the  tree 
thereby  be  injured. 

10.  Things  easily  moved  may  become  real  property. 


8        BUSINESS  MAN'S  LEGAL  ADVISER 

This  is  especially  so  of  things  used  in  connection  with 
real  property  that  are  useless  after  severing  them.  For 
example,  a  key  to  the  door  of  a  house  is  an  essential  part 
of  the  door  itself,  and  is,  therefore,  really  like  the  land 
whereon  the  house  stands.  In  like  manner,  the  doors, 
windows,  blinds,  and  other  portions  of  a  house  that  are 
readily  removable,  the  mill-stones  of  a  mill  —  are  all 
parts  of  the  structure  to  which  they  belong,  and,  on  its 
sale,  they  pass  with  the  structure  itself,  because,  on  the 
one  hand,  they  are  essential  thereto;  on  the  other,  they 
would  be  of  no  use  to  the  grantor  were  they  retained  by 
him.  Other  illustrations  of  the  same  nature  are  hop- 
poles  piled  in  a  yard,  fence-rails,  and  loose  stones  used 
in  wall-building.  While  the  application  of  this  rule 
to  many  things  is  very  plain;  to  others  its  application 
is  difl&cult.  For  example,  the  animals  employed  in 
husbandry  —  farming  utensils,  plants,  doves  in  the 
dove-cote  —  are  still  often  matters  of  legal  contention 
on  the  sale  of  land. 

11.  Sometimes  a  mine  or  quarry  is  owned  by  one 
person,  and  the  surface  by  another.  When  this  double 
ownership  of  land  exists,  it  is  the  duty  of  the  mine 
owner  to  guard  the  surface  from  injury  by  sinking. 
To  this  extent,  the  subterranean  or  mining  property 
is  subservient  to  the  surface.  In  other  words,  where 
the  upper  and  underground  are  owned  by  different  in- 
dividuals, the  maxim  of  the  law  that  applies  to  each 
one  is,  he  must  not  use  his  own  in  a  way  that  will 
injure  the  other, 

12.  As  land  owned  by  a  corporation  is  real  property, 
in  a  few  cases  the  shares  of  the  corporation  itself  are  of 


WHAT  IS  LAND,  OR  REAL  PROPERTY     g 

a  like  nature.  Generally,  they  are  personal  property. 
But,  when  the  land  held  by  a  corporation  belongs  to  the 
stockholders,  and  the  corporation  is  only  a  manager, 
the  shares  are  real  property.  This  is  true  also  of  the 
shares  of  a  corporation  created  solely  for  holding, 
using,  or  improving  real  estate. 

13.  In  some  states,  a  church  pew  is  real  property;  in 
others,  personal  property.  Unless  one's  rights  are 
regulated  by  statute  or  positive  law,  his  interest  is 
limited  or  qualified.;  a  right  of  occupancy  under  some 
restrictions.  He  has  an  absolute  and  exclusive  right 
to  the  possession  and  enjoyment  of  it  for  the  purpose 
of  public  worship,  and  may  maintain  an  action  against 
any  invader.  Should  he  assign  or  lease  it,  the  new 
occupant  would  have  a  right  to  occupy  only  during 
public  worship,  for  that  purpose  and  matters  relating 
thereto.  A  tramp,  therefore,  could  not,  by  leasing  a 
pew,  acquire  the  right  to  convert  it  into  a  place  of 
shelter;  nor  a  peanut  vendor,  a  stand  for  selling  his 
favourite  fruit.  The  annual  renter  of  a  pew  "has  at 
most  only  a  lease-hold  interest  for  the  term." 

"The  English  ecclesiastical  law  forms  the  basis  of 
the  law  regulating  the  affairs  of  the  Episcopal  Church 
in  this  country,  and  is  in  force,  except  as  modified 
by  statutes  and  the  usages  and  canons  of  the  church."  * 

All  the  other  religious  societies  have  special  laws, 
usages,  and  local  customs  that  regulate,  to  a  very 
considerable  extent,  the  rights  and  duties  of  the 
pewholders. 

The  trustees  of  a  free  church,  charging  for  the  sit- 

*  Kerr  on  Real  Property,  S  36,  P-  34- 


lo      BUSINESS  MAN'S  LEGAL  ADVISER 

tings,  have  authority  to  decide  where  attendant  shall  sit, 
"  and  may,  by  force,  remove  one  who  persists  in  sitting 
in  a  place  other  than  that  assigned  to  him."* 

The  absolute  sale  of  a  pew  does  not  give  the  pew- 
holder  an  absolute  right  to  the  property,  as  would  the 
sale  of  a  piece  of  land.  He  gains  "simply  a  right  to 
occupy,  under  certain  restrictions,  the  pew  during  public 
worship  of  the  congregation,  and,  possibly,  of  sitting 
therein  at  meetings  of  the  society  held  for  temporal 
purposes." 

Having  no  title  to  the  soil  beneath  the  pew  nor  to  the 
space  above,  he  cannot  build  a  vault  in  the  earth,  nor 
decorate  the  pew  in  harmony  with  his  tastes,  however 
artistic  or  grotesque  they  may  be.  Again,  the  rights  of  a 
pewholder  of  a  church  that  has  been  destroyed  by  fire, 
or  abandoned,  are  gone.  So,  too,  after  the  sale  of  the 
edifice  or  the  ground,  he  cannot  share  in  the  proceeds. 
Nor  can  he  compel  services  to  be  held  in  the  church,  or 
prevent  its  abandonment;  or  the  rebuilding  of  another. 
Lastly,  a  writer  has  declared  that  a  congregation  which 
abandons  its  meeting-house  as  a  place  of  public  worship 
although  it  be  fit  for  that  purpose,  and  erects  a  new  one 
on  a  different  site,  is  not  liable  in  any  way  to  the  pro- 
prietor or  lease-holder  of  a  pew  in  the  old  meeting-house, 
unless  the  society  acted  wantonly,  or  sought  to  injure 
him.^ 

As  a  society  possesses  such  large  rights  to  sell,  re- 
move, rebuild,  and  the  like,  its  rights  to  make  repairs, 
however  extensive  they  may  be,  are  paramount  to  the 
rights  of  the  pewholders. 

I  Ken  on  Real  Property,  §  38,  p.  35. 
*  Ibid,  §  42,  p.  38. 


WHAT  IS  LAND,  OR  REAL  PROPERTY    ii^ 

14.  One  who  purchases,  and  has  conveyed  to  him,  a 
lot  in  a  public  cemetery  does  not  acquire  the  fee  there- 
to; only  an  easement  or  license  to  bury  therein.  So 
long  as  he  is  in  the  rightful  possession  of  the  lot,  he 
may  maintain  an  action  against  a  trespasser,  and  es- 
pecially against  one  who  enters  and  disinters  the 
remains  of  a  person  buried  there;  in  some  states,  this 
is  made  a  penal  offence.  The  common  law  recognizes 
a  right  of  property  in  a  shroud,  or  apparel  of  the  dead, 
as  belonging  to  the  person  who  had  charge  of  the 
funeral.  In  Indiana,  the  bodies  of  the  dead  belong  to, 
the  surviving  relatives  in  the  order  of  inheritance,  like 
other  property,  and  the  courts  possess  the  power  to 
protect  the  relatives  in  the  exercise  of  the  rights  of 
burial.  In  Minnesota,  a  widow  recovered  damages 
for  the  dissection  of  the  body  of  her  deceased  husband. 
In  Pennsylvania,  it  has  been  held  that  a  widow's 
control  of  the  body  ceases  at  burial,  and,  therefore, 
the  disposition  of  it  belongs  to  the  next  of  kin. 
In  Rhode  Island,  the  courts  have  decided  that 
a  widow  has  a  right  to  recover  the  body  of  her 
lamented  husband  when  it  has  been  buried  by  the 
next  of  kin  in  a  particular  cemetery  against  her  wishes. 

The  burial  of  a  dead  body  in  a  cemetery  lot  is  the 
only  possession  necessary  to  create  a  complete  owner- 
ship of  the  easement  and  render  it  heritable.  Again, 
so  long  as  a  gravestone  marks  a  place  for  burial,  the 
possession  is  adverse  to  all  other  claimants.  The 
paramount  right  of  burial  is  in  the  surviving  husband 
or  widow/ 

>  See  the  recent  case  of  Pettigrew  v.  Pettigrew,  307  Pa.,  313,  for  other  points 
and    references. 


12      BUSINESS  MAN'S  LEGAL  ADVISER 

A  person  who  has  erected  in  a  cemetery  lot  a  grave- 
stone or  monument,  which  is  defaced  or  removed  during 
his  life-time,  may  receive  damages  from  the  wrong-doer. 
And  when  this  is  done  after  his  death,  the  heirs  of  the 
person  in  whose  memory  the  stone  was  erected  can 
maintain  an  action  against  the  defacer. 

The  rightful  possessor  of  a  lot  may  transmit  it  to  his 
heirs  at  law.  Possession  once  established,  unless 
voluntarily  given  np,  continues  as  long  as  the  graves 
are  marked  and  the  cemetery  is  used  for  that 
purpose. 

As  the  right  of  burial  is  not  an  interest  in  the  soil,  if 
the  friends  of  a  person  buried  there  are  required  to 
remove  his  bones,  because  the  ground  can  no  longer  be 
used  for  this  purpose,  they  cannot  recover  any  com- 
pensation. Usually,  cemeteries  are  subject  to  public 
regulations.  The  purchaser  of  a  lot  acquires  no  title 
to  the  land;  simply  the  exclusive  right  to  bury  therein 
so  long  as  the  cemetery  is  used  for  that  purpose.  The 
right,  therefore,  "is  revocable  whenever  public  neces- 
sity requires." 

A  person's  exclusive  right  to  the  possession  of  a  spot 
of  ground  in  a  public  cemetery  in  which  his  dead  are 
buried  is  limited  to  the  time  during  which  the  ground 
is  used  for  burial  purposes,  therefore,  when  the  ceme- 
tery is  discontinued  and  the  bodies  are  to  be  removed, 
notice  should  be  given  to  the  party  interested  therein, 
if  he  is  known,  and  if  he  fails  to  remove  the  remains 
their  removal  by  others  must  be  done  in  a  decent 
manner.  The  right  to  bring  an  action  to  recover 
damages    for  unlawfully    removing   remains  from  a 


WHAT  IS  LAND,  OR  REAL  PROPERTY    13 

grave  does  not  rest  on  such  facts  as  the  erecting  of 
a  headstone,  raising  a  mound  over  the  grave  and  the 
like,  but  on  the  right  of  an  easement  or  license.' 

15.  Sometimes  money,  the  most  fluid  of  all  things, 
partakes  of  the  character  of  realty,  or  of  the  incidents 
and  attributes  of  real  estate.  Money,  which  by  agree- 
ment is  to  be  invested  in  land,  equity  regards  as  land; 
vice  versa,  land  which  is  to  be  converted  into  money, 
as  money. 

Again,  a  man  who,  in  his  will,  directs  that  land  shall 
be  sold  and  the  money  paid  over  to  an  alien,  may  have 
his  wish  executed,  though  the  alien  could  not  have 
taken  the  real  estate. 

16.  The  two  most  important  rules  to  apply  to  the 
question,  whenever  it  arises,  whether  a  thing  should  be 
regarded  as  real  or  personal  property,  are  intention  and 
use.  Intention  is  inferred  from  the  nature  and  mode 
of  annexing  the  thing  and  the  situation  of  the  annexor; 
his  relation  to  the  land,  and  the  policy  of  the  law.  A 
house,  for  example,  built  on  another's  land  with  his 
permission,  is,  between  the  parties,  the  builder's  per- 
sonal property;'  otherwise,  it  belongs  to  the  owner 
of  the  land.  Again,  a  structure  erected  by  a  tenant 
during  his  tenancy,  by  virtue  of  an  agreement  to 
remove  it  before  he  goes  away,  is  his  owA  personal 
property,  and  he  has  a  right  to  remove  the  structure 
at  the  expiration  of  his  lease. 

A,  who  was  a  land-owner,  agreed  with  B  that  he 
might  build  a  bam  on  his  land.    B  was  to  hire  the  barn 

1  Note,  75  Am.  St.  Rep.  430. 
«  Kerr,  §  67,  p.  63. 


14       BUSINESS  MAN'S  LEGAL  ADVISER 

and  remove  it  whenever  he  desired.  Afterward,  A  sold 
the  land  to  C,  they  agreeing  that  the  barn  should  not 
be  included  in  the  sale  and  conveyance.  C  sold  the 
land  to  D,  saying  nothing,  either  through  forgetfulness 
or  design,  about  the  barn.  D,  supposing  the  barn 
passed  to  him  by  the  conveyance,  insisted  on  retaining 
it;  and  the  court  decided  that  he  was  the  owner,  un- 
affected by  the  agreement  made  by  former  owners. 
Of  course,  a  different  principle  would  have  applied 
had  he  known,  or  believed,  that  B  had  built  it  by  virtue 
of  an  agreement  with  A.  B,  therefore,  was  deprived 
of  the  ownership  of  his  barn,  for  D  was  an  innocent 
purchaser.  B  had  a  claim  against  C  for  its  value,  but 
a  claim  of  this  kind  against  another  who  may  be  worth- 
less is  a  poor  equivalent  for  the  thing  itself. 

17.  The  use  to  be  made  of  things  is  often  important 
in  determining  whether  they  are  real  or  personal  prop- 
erty. Thus,  the  blinds  of  a  house  that  have  been 
fitted,  and  are  temporarily  off  at  the  time  of  the  sale 
for  the  purpose  of  painting  or  repairing  them,  pass 
with  the  sale  of  the  house  itself,  and,  for  the  reason  that 
perhaps  they  could  be  used  nowhere  else.  In  like 
manner,  a  farmer  who  has  a  large  quantity  of  cut 
timber  on  his  land,  and  especially  who  has  been  in  the 
habit  of  selling  it,  may  remove  it  within  a  reasonable 
time,  because  no  use  could  be  made  of  a  large  quantity 
of  timber  on  the  land  itself.  The  quantity,  as  well  as 
the  ordinary  practice  of  the  farmer,  would  be  decisive 
in  fixing  the  nature  of  the  timber.  On  the  other  hand, 
if  he  was  in  the  habit  of  cutting  timber  occasionally 
for  the  purpose  of  converting  it  into  fences  or  boards 


\ 

WHAT  IS  LAND,  OR  REAL  PROPERTY    15 

for  farm  use,  this  would  be  equally  conclusive  of  his 
intention  concerning  a  few  sticks  that  might  happen 
to  be  lying  on  the  ground  at  the  time  of  the  sale. 

Another  illustration  of  the  same  nature  is  the  exist- 
ence of  a  quantity  of  peat,  wood,  or  other  fuel  on  a 
farm  at  the  time  of  its  sale.  If  the  quantity  is  small, 
the  law  presumes  that  it  was  prepared  for  use  on  the 
land,  and  it  goes  to  the  purchaser;  if  the  quantity  is 
large,  the  opposite  presumption  will  be  applied,  and  it 
will  be  retained  by  the  vendor  as  personal  property. 

A  curious  case  may  be  added;  that  of  a  landowner 
who  quarried  a  large  stone,  designed  for  a  tomb  out- 
side his  farm,  and  sold  his  land,  giving  the  purchaser 
notice  of  his  intention.  This  stone,  as  the  court  held, 
was  his  personal  property,  though  it  remained  in  that 
place  for  more  than  thirty-five  years  after  selling  his 
farm. 

18.  It  may  be  noted  that,  in  describing  the  things 
that  are  on  the  dividing  line  between  real  and  personal 
property,  we  have  been  looking  at  those  which  con- 
cern sellers  and  buyers  of  land.  Between  landlords 
and  tenants,  mortgagors  and  mortgagees,  and  other 
parties,  different  rules  apply;  which  will  be  hereafter 
given. 


CHAPTER  II 
ENTIRE  OWNERSHIP  OF  LAND 

§  I.     By  Citizens 

1.  Land  may  be  owned  absolutely. 

2.  Meaning  of  entire  or  absolute  ownership. 

3.  Who  can  hold  it.    Aliens. 

4.  Corporations. 

5.  Words  needful  in  a  deed. 

6.  What  words  in  a  will. 

7.  When  lands  given  by  will  are  a  gift. 

8.  When  gift  lands  may  be  taken  for  donor's  debts. 

9.  An  absolute  owner's  right  to  sell. 

1.  The  law  relating  to  real  property  was  brought 
from  England,  and  bears  many  marks  of  its  feudal 
origin.  Though  it  has  not  been  modernised  like  the 
law  concerning  personal  property,  yet  many  elaborate 
and  technical  principles  have  been  swept  away, 
leaving  a  residue  easier  to  comprehend. 

2.  By  absolute  or  entire  ownership  is  meant  the 
largest  and  most  complete  dominion  one  can  possess 
in  land.  Generally,  the  word  estate  is  used  in  the 
law  books  instead  of  ownership  to  indicate  one's 
interest  in  land.    The  usual  phrase  to  indicate  an 

16 


ENTIRE  OWNERSHIP  OF  LAND  17 

absolute  estate,  or  unlimited,  unrestricted  owner- 
ship, is  "fee  simple." 

No  one,  in  truth,  can  acquire  absolute  dominion, 
because  the  state,  notwithstanding  the  large  freedom 
enjoyed  by  everyone,  possesses  an  imdoubted  right 
to  take  land  for  public  purposes;  or  rather,  to  use 
it  as  the  pubKc  needs  may  require.  Thus,  as  we  all 
know,  the  state  is  taking  lands  for  roads,  buildings, 
water  reservoirs;  and,  as  civilisation  expands,  other 
public  uses  may  arise.  Vast  quantities  have  been 
taken  for  railroad  purposes  under  the  right,  as  it  is 
called,  of  eminent  domain.  In  other  words,  a  rail- 
road corporation  is  a  public  instrument  or  agency 
to  such  an  extent  that  the  state  permits  the  taking 
of  such  lands  as  may  be  needed  for  the  proper  and 
effective  execution  of  its  purposes. 

Another  illustration  may  be  given.  Fifty  years 
ago,  some  of  the  New  England  states  authorised  the 
manufacturing  companies  to  acquire  the  right  to 
flow  land  belonging  to  individuals  for  the  purpose 
of  acquiring  water-power.  This  authority  had  its 
origin  in  the  inability  of  manufacturing  companies 
to  purchase  the  rights  of  flowing  land  on  reasonable 
terms,  or,  in  truth,  on  any  terms  whatever.  Perhaps 
it  is  the  largest  invasion  of  the  right  of  absolute  owner- 
ship of  land  ever  exercised  in  this  coimtry,  and  the 
covurts,  on  more  than  one  occasion,  have  questioned 
the  legality  of  the  proceeding.  Yet  the  absolute, 
unrestricted  ownership  of  land  is  unknown  in  this 
country  or  in  any  other.  Nevertheless,  in  a  practical 
sense,  individuals  are  the  absolute  owners  of  a  large 


i8       BUSINESS  MAN'S  LEGAL  ADVISER 

portion  of  our  country,  acquired,  as  we  shall  soon 
learn,  in  various  ways. 

3.  Let  us  begin  by  inquiring  who  can  acquire  or 
hold  real  property.  Possibly,  the  reader  may  think 
that  everybody  has  this  right,  yet  there  are  some 
limitations.  There  was  a  time,  indeed,  when  aliens 
were  under  various  restrictions;  and  some  of  the  early 
laws  on  this  subject  are  curious  reading,  remembering 
that  those  who  made  them  had  been  in  the  country 
only  a  few  days  or  weeks  longer  than  those  to  whom 
they  were  applied.  Long  ago,  most  of  the  states 
enacted  laws  providing  that  aliens  who  were,  or  in- 
tended to  become  citizens,  might  acquire  and  hold 
real  property  like  other  persons. 

4.  Some  restrictions  are  also  placed  on  corpora- 
tions in  purchasing  and  holding  lands.  By  the  com- 
mon law,  a  corporation  could  hold  and  dispose  of 
real  property  for  any  purpose  not  inconsistent  with 
the  object  of  its  creation.  By  general  or  special 
statute,  a  broader  restriction  has  often  been  placed 
on  corporations.  Generally,  their  right  to  acquire 
and  hold  real  estate  is  determined  by  their  charters, 
or  by  legislative  enactment.  A  national  bank,  for 
example,  is  permitted  to  hold  real  estate  for  its  banking- 
house.  It  may  acquire  real  estate  in  the  discharge 
of  a  debt;  but,  whenever  this  happens,  it  must  sell 
the  land  at  the  end  of  five  years  by  auction,  unless  it 
is  fortunate  in  selling  sooner  by  private  sale.  In 
other  words,  a  bank  is  not  chartered  to  deal  in  real 
estate,  and  the  law  will  not  permit  the  association  to 
depart  from  the  real  object  of  its  creation.    In  like 


ENTIRE  OWNERSHIP  OF  LAND  19 

manner,  a  railroad  company,  though  possessing 
special  rights  to  acquire  land  or  an  interest  therein 
for  the  purpose  of  building  its  tracks,  stations,  and 
offices,  cannot  purchase  real  estate  with  the  same 
freedom  as  an  individual.  It  could  not,  for  example, 
invest  its  surplus  in  real  estate  as  absolute  owner, 
with  the  view  solely  to  a  future  profitable  sale.  Very 
likely  railroads  and  other  corporations  transgress 
to  some  extent  this  provision  of  their  charters;  their 
transgressions,  however,  do  not  change  the  law. 

Again,  though  a  corporation  may  transgress  its 
fundamental  law  in  making  improper  or  illegal  pur- 
chases, a  vendor  cannot  complain  and  seek  to  recover 
the  lands  he  may  have  sold,  should  they  rise  in  value, 
on  the  groimd  that  the  corporation  had  no  right  to 
purchase  them.  First,  because  he,  too,  is  a  joint 
sinner  in  selling  to  the  corporation;  second,  because 
if  anyone  has  been  wronged,  it  is  the  state,  which 
alone  has  the  right  to  call  the  corporation  to  accoimt 
for  its  misdeed. 

5.  In  acquiring  the  absolute  ownership  of  land  by  a 
deed  or  written  conveyance,  to  gain  a  perfect  title 
it  is  necessary  to  use  the  word  "heirs."  The  title 
thus  acquired  is  known  as  a  "fee,"  or  "fee  simple." 
It  is  one  of  the  old  terms  that  has  come  down  to  us 
from  the  rugged  feudal  age.  This  is  a  very  arbitrary 
rule  or  principle.  "Still,"  as  an  eminent  author  has 
remarked,  "it  is  as  imperative,  as  a  rule  of  law,  now  as 
ever.  No  synonym  will  supply  its  place.  Even  a 
grant  to  'one  and  his  heir*  will  give  him  only  a  life 
estate,  or  to  one  'or  his  heirs';  or  to  one  and  'his  heirs 


ao      BUSINESS  MAN'S  LEGAL  ADVISER 

during  the  life  of  another,'  or  to  one  'forever,'  or  to 
one  'and  his  assigns  forever.'  "' 

Yet  the  rule  is  not  quite  so  arbitrary.  In  an  ab- 
solute estate  given  to  one  by  a  legislative  grant,  the 
word  "heirs"  is  not  needful  to  convey  such  an  estate. 
An  intention  to  create  it,  clearly  shown  by  any  form 
of  expression,  will  suflBice. 

By  statutes,  also,  in  many  states,  it  is  not  necessary 
to  use  the  word  "heirs"  to  create  an  absolute  estate. 
Any  equivalent  words  may  be  used  that  clearly  show 
the  grantor's  intention  to  convey  such  an  estate  to 
the  piu-chaser. 

Again,  this  strict  rule  does  not  apply  to  a  grant  or 
conveyance  of  land  to  a  trustee  for  the  benefit  of  others. 
He  acquires  the  needful  estate  for  the  proper  execu- 
tion of  his  trust  and  no  more,  without  regard  to  the 
words  used  in  the  deed.  Thus,  a  grant  to  A  and  his 
heirs  as  a  trustee  for  the  life  of  B  conveys  an  estate  to 
the  trustee  for  B's  life  only.  Again,  a  grant  to  A  in 
trust  to  sell  conveys  an  absolute  interest;  in  other 
words,  A  can  sell  and  convey  an  absolute  title  to  the 
buyer. 

6.  In  conveying  land  by  a  will,  a  more  liberal  prin- 
ciple prevails.  In  these  cases,  the  intention  of  the 
testator  is  regarded  and  creates  the  rule.  This  is 
enough  to  convey  an  absolute  interest  without  the 
use  of  the  word  "heirs."  Thu^  the  use  of  the  words 
"all,"  "right,"  "property,"  "mheritance,"  "in  fee 
simple,"  have  proved  sufficient  to  transfer  an  abso- 
lute title   in    the   property   devised   without   using 

•  Washburn,  §  53. 


ENTIRE  OWNERSHIP  OF  LAND         21 

the   technical   words  required  in   a    deed    of    con- 
veyance. 

7.  Again,  one  to  whom  lands  are  given  by  will, 
that  are  charged  with  the  payment  of  money,  will 
hold  them  as  an  absolute  gift;  for  the  testator  in- 
tended to  make  him  the  object  of  his  bounty.  Other- 
wise, the  recipient  might  die  after  pa)dng  the  money 
and  lose  the  whole  benefit  of  the  devise. 

8.  Lands  held  absolutely,  or  "in  fee  simple,"  are 
subject  to  the  debts  of  the  owner,  as  well  after  his  death 
as  during  his  life.  This  is  a  radical  departure  from 
the  old  English  law.  Says  Lord  Romilly  in  his  Auto- 
biography: "The  heir's  right  to  the  real  property 
of  his  ancestor  ought  not  to  be  disappointed  by  the 
claims  of  creditors." '  From  this  rule,  a  logical 
development  of  the  feudal  system,  the  reader 
can  mark  the  long  advance  which  subordinates  the 
wishes  and  rights  of  the  heir  to  the  just  claims  of 
creditors.* 

9.  One  of  the  most  important  incidents  of  a  "fee 
simple,"  or  absolute  estate,  is  the  unrestricted  right 
of  sale.  This  right,  so  long  of  slow  growth,  is  now  as 
firmly  established  as  any  other  principle  of  law.  A 
limited,  reasonable  restriction  on  the  right  of  sale  or 
transfer  will  be  upheld,  and  the  purchaser  or  grantee 
may  forfeit  his  estate  by  violating  it.  Thus,  in  a 
devise  to  A  and  his  heirs,  a  limitation  may  be  made 
that,  if  A  in  his  lifetime  fails  to  convey  the  land,  it 
shall  go  to  another  person,  who  is  named.     Such  a 

'  Vol.  n.,  p.  380.     See  Section  a,  §  ii. 

'  See  note  t,  Williams  on  Re&l  Property,  p.  8i  (6tfa  American  Edition). 


22       BUSINESS  MAN'S  LEGAL  ADVISER 

limitation  would  be  valid.  But  a  condition  restrict- 
ing the  right  to  sell  to  a  single  person  only  would  be 
void,  as  he  might  happen  to  be  incapable  of  purchasing. 

§  2.    By  Aliens;  Citizenship 

1.  Aliens.     How  classified. 

2.  On  what  does  citizenship  depend. 

3.  Children  born  abroad  of  American  parents. 

4.  Limitation  to  above  rule. 

5.  Our   laws   cannot    affect   persons   living    imder 

another  jurisdiction. 

6.  Naturalisation  is  a  federal  function. 

7.  Merchant  seamen. 

8.  Soldiers. 

9.  Who  cannot  be  naturalised. 

10.  Females  are  included. 

11.  First  step;  Declaration  of  one's  intention. 

12.  Declaration  of  minor. 

13.  Effect  of  declaration. 

14.  Length  of  residence  required. 

15.  Meaning  of  continued  residence. 

16.  Where  application  should  be  made  for  admission; 

Requirements. 

17.  Applicant's  moral  character. 

18.  Foreign  title  must  be  renounced. 

19.  Rights  acquired  by  widow  and  children  of  applicant. 

20.  Private  citizen  can  take  no  action  to  set  aside  an 

order  of  admission  to  citizenship. 

21.  Federal  government  can  act. 

22.  Effect  of  naturalisation  on  children. 


ENTIRE  OWNERSHIP  OF  LAND  23 

23.  EfiFect  of  marriage  by  foreign  woman  to  American 

citizen. 

24.  Husband  need  not  have  been  an  American  at 

time  of  marriage. 

25.  Effect  of  marriageby  an  American  woman  toanalien. 

26.  Effect  of  alien  husband's  death  on  citizenship  of 

an  American  wife. 

27.  Effect  of  her  divorce  from  him. 

28.  Naturalisation  by  treaty. 

29.  Disabilities  of  alien  land  ownership. 

I .  An  alien  is  one  bom  out  of  the  United  States,  who 
has  not  been  naturalised  under  the  Constitution.  Aliens 
may  be  classified  as  residents  and  non-residents,  alien 
friends  and  alien  enemies.  Foreigners  by  birth  are  pre- 
sumed to  be  aliens.  By  the  Federal  Constitution  and 
laws  alien  friends  are  entitled  to  the  same  protection  of 
their  rights  as  citizens.  Thus  he  may  maintain  an 
action  to  recover  possession  of  his  land,  or  to  have  it 
divided,  or  to  enforce  the  sale  of  land  on  which  he 
holds  a  mortgage  debt.  In  Pennsylvania  a  resident 
alien  friend  may  deal  as  freely  in  all  forms  of  property, 
whether  personal  or  real,  "as  any  natural-born  citizen," 
therefore  he  may  become  a  stockholder  in  a  Pennsyl- 
vania corporation.  A  non-resident  or  alien  friend  stock- 
holder takes  his  shares  with  all  the  rights  and  privileges 
which  pertain  to  them  in  the  hands  of  a  citizen;  he  may 
vote  on  them,  and  if  no  other  qualification  besides 
ownership  is  required  of  directors,  he  may  become  one/ 

*  Taylor  v.    Carpenter,  3  Story,  438.    Commonwealth   v.     Detwiler   131 
Pa.,  614. 


24      BUSINESS  MAN'S  LEGAL  ADVISER 

2.  Every  nation  determines  for  itself  who  shall, 
and  who  shall  not,  be  its  citizens.  By  the  laws  of 
some  states,  citizenship  by  birth  depends  upon  the 
place  of  birth;  by  the  laws  of  others,  citizenship  de- 
pends upon  the  nationality  of  the  parents.  The 
latter  is  called  the  law  of  nations  because  it  is  the  rule 
in  many  of  them.  In  the  United  States  both  rules 
exist,  but  more  generally  the  former.  By  numerous 
decisions  the  law  is  clearly  established  that  the  chil- 
dren born  to  foreigners,  in  the  United  States,  are 
citizens  of  the  United  States.' 

3.  Citizenship  is  also  conferred  on  children  bom 
in  foreign  countries  whose  fathers  were  at  the  time 
of  their  birth,  citizens  of  the  United  States.  The 
federal  statute  provides  that  "all  children  born  or 
hereafter  born  out  of  the  limits  and  jurisdiction  of 
the  United  States,  whose  fathers  were  or  may  be  at 
the  time  of  their  birth  citizens  thereof,  are  declared 
to  be  citizens  of  the  United  States."^  But  if  a  child 
is  born  after  his  father  has  in  any  way  expatriated 
himself,  he  is  to  all  intents  and  purposes  an  alien  and 
not  entitled  to  the  protection  of  the  United  States. 

4.  If  the  father  was  born  abroad  and  has 
always  resided  there  his  child  is  not  a  citizen, 
for  the  statute  says  that  the  rights  of  citizenship 
shall  not  descend  to  children  whose  fathers  never 
resided  in  the  United  States.'  "This  limitation," 
says  Van  Dyne,  "of  the  privileges  of  citizenship  to 
the  children  of  citizens  who  have  resided  in  the  United 

1  Re  Look  Tin  Sing,  10  Sawyer,  353. 
'  U.  S.  Comp.,  1901,  §  1993. 
» Ibid. 


ENTIRE  OWNERSHIP  OF  LAND  25 

States  was  designed  to  prevent  the  residence  abroad  of 
successive  generations  of  persons  claiming  the  privileges 
of  American  citizenship  while  evading  its   duties.'" 

5.  Again,  while  our  government  may  confer  the 
rights  and  privileges  of  its  citizenship  on  persons 
born  of  American  parents  in  other  coimtries,  "it  can- 
not extend  its  jurisdiction  beyond  its  own  territorial 
limits  so  as  to  relieve  those  born  under  and  subject 
to  another  jurisdiction  from  their  obligations  or  duties 
thereto;  nor  can  it,  by  undertaking  to  confer  its 
citizenship  upon  persons  who  have  never  come  within 
its  territory,  interfere  with  the  just  right  of  the  foreign 
government  to  control  its  own  subjects." 

6.  In  the  United  States  by  the  Constitution,  the 
naturalisation  of  foreigners  is  a  purely  federal  function. 
This  has  been  defined  to  be  the  act  of  adopting  a 
foreigner  and  clothing  him  with  the  privileges  of  a 
citizen.  And  the  effect  of  naturalising  one  is  not 
affected  in  any  way  by  the  laws  of  the  applicant's 
country.  It  is  immaterial  whether  he  had,  or  had  not, 
permission  to  emigrate  from  the  country  of  his  origin. 

7.  Merchant  seamen  also  are  favoured.  Every 
seaman,  though  a  foreigner,  who  declares  his  inten- 
tion of  becoming  an  American  citizen  in  any  compe- 
tent court  who  shall  have  served  three  years  on  board 
of  a  merchant  vessel  of  the  United  States  subsequent 
to  the  date  of  such  declaration,  may,  on  his  application 
to  such  tribunal  and  the  production  of  his  certificate 
of  discharge  and  good  conduct  during  that  time  and 

'  Citizenship  of  United  States,  p.  34. 

*  Secretary  Fish  to  President,  Van  Dyne,  p.  iS- 


26      BUSINESS  MAN'S  LEGAL  ADVISER 

also  the  certificate  of  his  declaration  of  intention  to 
become  a  citizen,  be  thus  admitted.'  This  provision 
was  applied  thirty  years  ago  to  a  native  of  France 
who  had  declared  his  intention  to  become  a  citizen 
of  the  United  States,  and  who  subsequently  served 
as  seaman  and  steward  on  American  merchant  vessels 
for  more  than  twenty  years.  He  claimed  the  pro- 
tection of  the  United  States  from  arbitrary  arrest 
and  imprisonment  by  the  Spanish  authority  of  Cuba, 
and  it  was  promptly  regarded.  The  Department 
of  State  interfered  in  his  behalf  and  ultimately  he 
received  $5,000  as  a  recompense  for  the  wrong  thus 
inflicted  on  him. 

8.  Any  alien  of  the  age  of  twenty-one  or  older  who 
has  enlisted  and  been  honourably  discharged  from 
the  United  States  Army,  may  be  admitted  to  citizen- 
ship without  any  previous  declaration  of  his  intention. 
A  somewhat  different  rule  applies  to  those  who  have 
served  in  the  navy  or  marine  corps.  The  former  must 
serve  "five  consecutive  years,"  and  the  latter  "one 
enlistment."  * 

9.  Not  all  aliens  can  be  naturalised.  The  first 
exceptions  are  the  citizens  or  subjects  of  a  "country, 
state,  or  sovereignty"  with  which  the  United  States 
are  at  war.  A  Spaniard,  for  example,  could  not  have 
been  naturalised  during  the  war  with  Spain.  "The 
courts  have,"  says  Van  Dyne,  "at  different  times, 
held  that  neither  Chinese,  Japanese,  Hawaiians, 
Burmese,  nor  Indians  can  be  naturalised."' 

*  U.  S.  Comp.  §  2174. 
2  Stat.,  §  2166. 

*  Van  Dyne,  p.  57- 


ENTIRE  OWNERSHIP  OF  LAND  27 

10.  Naturalisation  laws  include  females  as  well  as 
males.  And  an  alien  wife  may  be  naturalised  with- 
out the  consent  of  her  husband. 

11.  The  j&rst  step  in  the  process  is  to  declare  one's 
intention.  The  applicant  must  declare  on  oath,  be- 
fore "a  circuit  or  district  court  of  the  United  States, 
or  a  district  or  supreme  court  of  the  territories,  or  a 
court  of  record  of  any  of  the  states  having  common 
law  jurisdiction  and  a  seal  and  clerk,  two  years  at 
least,  prior  to  his  admission,  that  it  is  his  bona  fide 
intention  to  become  a  citizen  of  the  United  States, 
and  to  renoimce  forever  all  allegiance  and  fidelity 
to  any  foreign  prince,  potentate,  state  or  sovereignty."' 
This  declaration  can  be  made  immediately  after  his 
arrival  in  this  country.  Having  declared  his  inten- 
tion, he  is  then  entitled  to  a  certificate,  containing 
a  copy  of  his  declaration,  duly  attested  by  the  clerk 
and  seal  of  the  court. 

Besides  the  specific  courts  above  mentioned, 
others  are  included  having  common  law  jurisdiction. 
The  term  is  broad  enough  to  include  city,  police, 
and  country  courts  which  preserve  their  records  and 
have  a  recording  officer  who  acts  as  clerk. 

12.  A  different  rule  applies  to  a  minor.  If  he  has 
lived  here  three  years  "preceding  his  arriving"  at 
the  age  of  twenty-one,  he  may  then  "make  applica- 
tion to  be  admitted  a  citizen,"  '  without  having  made 
a  declaration  of  his  intention,  and  two  years  after- 
ward he  may  be  admitted. 

t  U.  S.  Comp.  igoi,  §  2165. 
*  SUt..  i  3x67. 


28      BUSINESS  MAN'S  LEGAL  ADVISER 

13.  This  declaration  of  intention  has  no  effect  either 
in  the  way  of  naturalising  or  expatriating  the  appli- 
cant. He  simply  records  his  intention  to  renounce 
his  present  allegiance  on  becoming  a  citizen  of  the 
United  States.  He  still  remains  an  alien  until  his 
naturalisation  is  completed.  "The  law,  justly  re- 
garding a  change  in  his  allegiance  by  a  foreigner  as 
an  act  of  grave  importance,  wisely  provides  that  there 
shall  be  two  steps  in  the  process.  By  the  first,  the 
purpose  of  change  is  announced.  Between  this  and 
actual  naturalisation  the  lapse  of  a  considerable 
interval  is  required  in  order  that  the  final  step  may  be 
taken  with  due  deliberation." ' 

"Can  the  declaration  of  intention,"  inquires  Van 
Dyne,  "confer  any  right  of  citizenship?  While  the 
laws  of  several  of  the  states  of  the  Union  extend  the 
right  of  suffrage  to  aliens  who  have  declared  their 
intention  to  become  citizens  of  the  United  States, 
a  state  cannot  make  the  subject  of  a  foreign  govern- 
ment a  citizen  of  the  United  States,  or  confer  on  him 
the  rights  and  privileges  appertaining  to  such  citizen- 
ship." '  As  the  Circuit  Court  of  Appeals  has  said: 
"A  state  may  confer* on  foreign  citizens  or  subjects 
all  the  rights  and  privileges  it  has  the  power  to  bestow, 
but  when  it  has  done  all  this,  it  has  not  naturalised 
them.  They  are  foreign  citizens  or  subjects  still, 
within  the  meaning  of  the  Constitution  of  the  United 
States."  '  Consequently  if  he  goes  back  to  his  native 
country  he  returns  as  one  of  its  citizens  or  subjects. 

>  Secretary  Fish,  quoted  by  Van  Dyne,  p.  67. 

'  Ibid.,   p.   67. 

•  Minneapolis  v.  Reum,  6  C.  C.  A.,  31. 


ENTIRE  OWNERSHIP  OF  LAND  29 

An  illustration  may  be  added  in  the  way  of  showing 
an  application  of  this  principle.  A  Turk  who  had 
declared  his  intention  contemplated  a  visit  to  his 
native  land,  and  inquired  of  the  Secretary  of  State 
if  he  could  count  on  the  intervention  of  the  United 
States  in  his  behalf,  Mr.  Bayard  replied  that  so 
far  as  his  political  rights  were  concerned  a  mere  dec- 
laration of  intention  to  become  an  American  citizen 
would  give  him  "no  title  to  claim  the  intervention 
of  the  United  States." 

Just  before  the  Cuban  insurrection  of  1869  many 
Cubans  declared  their  intention  to  become  citizens 
of  the  United  States,  and  afterward  returned  to  Cuba. 
The  United  States  consul  at  Trinidad  interfered  in 
behalf  of  some  of  them  and  asked  the  Department 
of  State  to  approve  his  action.  But  the  Secretary 
could  not.  In  his  reply  he  said:  "It  has  been  re- 
peatedly decided  by  this  department  that  the  declara- 
tion of  intention  to  become  a  citizen  does  not,  in  the 
absence  of  treaty  stipulation,  so  clothe  the  individual 
with  the  nationality  of  this  country  as  to  enable  him 
to  return  to  his  native  land  without  being  necessarily 
subject  to  all  the  laws  thereof.  In  the  present  un- 
happy state  of  things  in  Cuba  the  Secretary  of  State 
can  see  no  reason  for  departing  from  so  well  established 
and  so  wise  a  rule."  Mr.  Van  Dyne  adds  that  in  a 
few  instances  the  Department  of  State  has  held  that 
the  declarant  acquires,  by  his  declaration  of  intention, 
a  quasi  right  to  the  protection  of  this  government 
while  in  a  third  country. 

14.  Before  an  alien  can  acquire  citizenship  here  it 


30      BUSINESS  MAN'S  LEGAL  ADVISER 

must  "appear  to  the  satisfaction  of  the  court  admit- 
ting such  alien  that  he  had  resided  within  the  United 
States  five  years  at  least."  *  The  reason  for  this  re- 
quirement is  obvious.  During  this  period  he  can 
learn  more  perfectly  whether  he  wishes  to  transfer 
his  allegiance.  "Persons,"  says  Secretary  Fish,  "who 
may  have  declared  their  intention  to  become  citizens 
often  change  their  mind  and  fail  to  carry  that  inten- 
tion into  efiFect."  Besides,  he  must  reside  here  con- 
tinuously. "No  alien,"  so  the  statute  declares, 
"shall  be  admitted  to  become  a  citizen  who  has  not 
for  the  continued  term  of  five  years  next  preceding 
his  admission,  resided  within  the  United    States."* 

15.  What  is  meant  by  continued  residence?  Van 
Dyne,  after  remarking  that  the  word  residence  means 
a  person's  habitual  physical  presence  in  a  country 
or  place,  thus  continues:  "In  its  broad  sense  it  means 
a  place  of  abode,  selected  with  the  intention  of  remain- 
ing permanently  or  for  an  indefinite  period.  Taken 
in  its  broader  sense,  temporary  absence  from  the 
United  States,  upon  business  or  pleasure,  might  not 
be  incompatible  with  continued  residence  here.  The 
sole  criterion  would  be  the  intention  of  the  party. 
To  determine  this  it  would  be  proper  to  take  into 
consideration  the  length  of  absence,  its  purpose  and 
the  circumstances  surrounding  the  case." ' 

In  1868  this  question  arose  in  a  case  under  the  treaty 
between  the  United  States  and  the  North  German 
Confederation.    The  Attorney-General  asserted  that 

>  U.  S.  Comp.,  1901.  §  2i6s. 
*U.  S.  Comp.,  1901,  §  2170. 
•Van  Dyne,  p.  83. 


ENTIRE  OWNERSHIP  OF  LAND         31 

the  residence  of  an  applicant  for  naturalisation  would 
not  be  interrupted  by  a  transient  absence  for  business, 
pleasure  or  other  occasion,  with  the  intention  of  re- 
turning. On  the  other  hand,  to  return  to  one's 
original  country  and  engage  in  business  would  negative 
such  intention.  Therefore,  as  Van  Dyne  says:  "a 
temporary  absence  from  the  United  States  should 
not  defeat  the  intention  to  become  an  American 
citizen,"  but  he  adds,  "a  study  of  the  history  of  our 
naturalisation  legislation  does  not  clearly  show  this 
to  have  been  the  intention  of  Congress." 

It  appears,  therefore,  that  absence  for  any  length 
of  time  raises  the  question.  "If  the  applicant,"  says 
Senator  Berrien  in  one  of  the  debates  on  the  subject, 
"is  absent  any  part  of  the  time,  it  remains  for  the 
court  to  decide  whether  that  absence  is  sufficient  to 
prevent  the  issuing  of  the  certificate."  Van  Dyne 
thus  sums  up  the  law:  "If  the  facts  and  circumstances 
of  the  absence,  as  shown  in  the  particular  case,  indicate 
no  change  of  intention  on  the  part  of  the  applicant, 
it  is  the  duty  of  the  court  to  issue  the  certificate,  with- 
out requiring  such  time  to  be  made  up.  If  there  is 
evidence  showing  abandonment  of  intention,  the 
applicant  should  be  refused,  and  the  party  should  be 
required  to  begin  de  novo." 

16.  The  application  for  admission  to  citizenship 
should  be  made  before  the  clerk  of  the  court  to  which 
the  preliminary  declaration  may  be  made.  He  must 
declare  on  oath  that  he  will  support  the  Constitution 
of  the  United  States,  and  that  he  absolutely  renounces 
all  allegiance  to  every  foreign  prince  or  power.    To 


32       BUSINESS  MAN'S  LEGAL  ADVISER 

support  the  Constitution  clearly  implies  that  he  must 
have  some  knowledge  of  and  regard  for  it.  Therefore 
if  he  is  without  a  proper  imderstanding  of  it,  his  oath 
should  not  be  accepted.  Van  Dyne  states  two  cases 
not  in  complete  harmony  on  this  important  matter. 
In  the  first,  it  was  declared  that  "one  who  cannot 
read  or  write  English  but  has  read  the  Constitution 
in  a  foreign  language,  and  knows  that  the  United 
States  has  a  president,  but  cannot  mention  his  name, 
does  not  understand  the  principles  of  the  government 
of  the  United  States  or  its  institutions  sufficiently 
to  become  a  citizen."'  In  the  other  case  "an  alien 
who  was  ignorant  and  imable  to  read  and  write,  and 
who  could  not  explain  the  principles  of  the  Constitu- 
tion, was  entitled  to  be  naturalised,  where  it  was  shown 
that  he  was  peaceable,  industrious,  of  a  good  moral 
character  and  law-abiding."^ 

The  statute  also  provides  that  it  shall  be  made  to 
appear  to  the  satisfaction  of  the  court  admitting  such 
alien  that  he  has  resided  within  the  United  States  five 
years  at  least,  and  within  the  state  or  territory  where 
such  court  is  at  the  time  held,  one  year  at  least;  and 
that  during  that  time  he  has  behaved  as  a  man  of  good 
moral  character,  attached  to  the  principles  of  the 
Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same;  but  the 
oath  of  the  applicant  shall  in  no  case  be  allowed  to 
prove  his  residence.' 

Courts  therefore  require  the  testimony,  under  oath, 

'  Re  Kanaka  Nian,  6,  Utah,  259. 

*  Re  Rodriquez,  81  Fed.,  337. 

•  But.,  i  3165. 


ENTIRE  OWNERSHIP  OF  LAND  33 

of  at  least  two  citizens  of  good  standing  that  of  their 
own  knowledge  the  applicant  has  been  a  resident  of 
the  United  States  five  years  at  least,  and  of  the  state 
or  territory  wherein  his  application  is  made,  one  year. 

17.  What  must  he  possess  in  the  way  of  a  moral 
character?  He  must  not  have  been  guilty  of  murder, 
robbery,  theft,  bribery,  or  perjury.  Habitual  gaming 
or  selling  of  liquors,  where  forbidden  by  the  statute 
of  the  state  wherein  the  applicant  lives,  would  be  a 
bar  to  his  admission.     An  anarchist  also  is  'excluded.* 

18.  The  statute  also  provides  that  "in  case  the 
alien  appl3dng  to  be  admitted  to  citizenship  has  borne 
any  hereditary  title,  or  been  of  any  of  the  orders  of 
nobility  in  the  kingdom  or  state  from  which  he  came, 
he  shall,  in  addition  to  the  above  requisites,  make 
an  express  renunciation  of  his  title  or  order  of  nobility 
in  the  court  to  which  his  application  is  made,  and  his 
renunciation  shall  be  recorded  in  the  court."' 

19.  When  any  alien  who  has  made  a  declaration 
of  his  intention  to  become  a  citizen  "dies  before  he 
is  actually  naturalised,  the  widow  and  the  children 
of  such  an  alien  shall  be  considered  as  citizens  of  the 
United  States,  and  shall  be  entitled  to  all  rights  and 
privileges  as  such,  upon  taking  the  oaths  prescribed 
by  law."*  It  need  hardly  be  added  that  the  declara- 
tion of  intention  and  death  of  the  declarant  do  not 
confer  citizenship  on  the  widow  and  minor  children. 
They  must  also  take  the  oaths  required  in  other  cases 
for  admission  to  citizenship. 

*  See  cases  cited  in  Van  Dyne,  §  31,  p.  92. 
*Stat..  §  2165. 
*SUt.,    i    3168. 


34      BUSINESS  MAN'S  LEGAL  ADVISER 

20.  A  private  individual  has  no  standing  in  court 
to  institute  a  proceeding  to  set  aside  an  order  admit- 
ting an  alien  to  citizenship/ 

21.  But  if  a  decree  of  naturalisation  has  been  ob- 
tained in  a  fraudulent  manner  in  a  state  court,  the 
United  States  can  seek  to  have  it  cancelled  by  a  federal 
tribunal.  But  the  United  States  denies  the  right  of 
a  foreign  government  to  impeach  a  certificate  of 
naturalisation  issued  by  an  American  court. 

22.  The  statute  also  provides  that  the  children 
of  persons  who  have  been  duly  naturalised  under  any 
law  of  the  United  States,  or  who,  previous  to  the  pass- 
ing of  any  law  on  that  subject  by  the  Government 
of  the  United  States,  may  have  become  citizens  of 
any  one  of  the  states,  under  the  laws  thereof,  being 
under  the  age  of  twenty-one  years  at  the  time  of  the 
naturalisation  of  their  parents,  shall,  if  dwelling  in 
the  United  States,  be  considered  as  citizens  thereof 
and  the  children  of  persons  who  now  are,  or  have  been, 
citizens  of  the  United  States  shall,  though  born  out 
of  the  limits  and  jurisdiction  of  the  United  States,  be 
considered  as  citizens  thereof.* 

But  the  naturalisation  of  a  parent  does  not  confer 
citizenship  on  his  minor  children  born  abroad  before 
that  event  and  who  continue  to  reside  and  attain 
their  majority  abroad. 

A  emigrated  to  the  United  States  from  Germany 
in  1869  and  was  naturalised  here  in  1884.  The  next 
year  he  sent  for  his  son,  who  was  seventeen  years  old, 

« Re  McCarren,  8  N.  Y.  Misc.,  482. 
•Stat.,  i  2171. 


ENTIRE  OWNERSraP  OF  LAND         35 

to  join  him.  The  son  was  arrested  just  before  start- 
ing and  afterward  discharged.  A  sought  the  inter- 
vention of  our  government,  but  the  Secretary  of  State 
replied,  that  as  the  son  did  not  emigrate  with  his 
father  to  America  and  therefore  was  not  here  at  the 
time  of  the  father's  naturalisation,  "and  has  not  at 
any  time  since  been  a  resident  of  the  United  States, 
he  cannot  be  considered  a  United  States  citizen. 
Our  laws  require  that  the  children  of  persons  who  have 
been  naturalised  here  must  be  dwelling  in  the  United 
States  to  be  considered  citizens  thereof."' 

23.  By  statute  "any  woman  who  is  now,  or  may 
hereafter  be,  married  to  a  citizen  of  the  United  States, 
and  who  might  herself  be  lawfully  naturalised,  shall 
be  deemed  a  citizen."  *  This  language  is  broad  enough 
to  include  any  white  woman  or  woman  of  African 
nativity  or  descent,  or  Indian  woman. 

24.  The  question  has  been  raised,  must  the  husband 
be  a  citizen  at  the  time  of  the  marriage,  or  will  his  sub- 
sequent naturalisation  have  the  same  effect?  The 
highest  legal  tribimal  has  given  a  clear  answer:  "His 
citizenship,  whenever  it  exists,  confers,  under  the  act, 
citizenship  upon  her.  The  construction  which  would 
•estrict  the  act  to  women  whose  husbands,  at  the  time 
of  marriage,  are  citizens,  would  exclude  the  far  greater 
number,  for  whose  benefit,  as  we  think,  the  act  was 
intended." ' 

Must  an  alien  woman,  in  order  to  be  naturalised  by 
marriage  to  an  American  citizen,  have  resided  in  this 

>  See  Bayard 'quoted  in  Van  Dyne,  p.  X14. 

*  Stat.,   i   1994. 

•Kelly  Y.  Owen,  7  Wall..  496. 


36      BUSINESS  MAN'S  LEGAL  ADVISER 

country  for  five  years?  On  several  occasions  jurists 
have  divided  on  this  question,  but  the  negative  view, 
maintained  by  Attorney-General  Williams  of  the 
United  States,  is  decisive.  The  statute,  however, 
so  Mr.  Olney,  Secretary  of  State  has  maintained, 
"cannot  operate  to  naturalise  by  indirection  or  by 
executive  interpretation  a  person  who  is  an  alien  by 
birth  and  origin,  who  has  never  been  within  the  juris- 
diction of  the  United  States  and  who  at  the  time  may 
be  dwelling  within  a  foreign  jurisdiction." 

25.  While  an  alien  woman  may  become  an  American 
citizen  by  marrying  an  American,  is  the  opposite  rule 
true,  that  an  American  woman  becomes  an  alien  by 
marrying  a  foreigner? 

Van  Dyne  describes  many  cases  in  which  the  question 
has  arisen,  and  shows  that  the  answer  has  not  been 
uniform.  Yet  he  concludes  that  "the  decided  weight 
of  authority  is  to  the  effect  that  the  marriage  of  an 
American  woman  to  an  alien  confers  upon  her  the 
nationality  of  her  husband."  An  English  author, 
Cockburn,  wrote  thirty  years  ago  "  that  in  every  coun- 
try, except  where  the  English  law  prevails,  the  nation- 
ality of  a  woman  on  marriage  merges  in  that  of  her 
husband;  she  loses  her  own  nationality  and  acquires 
his."  Since  then  the  English  law,  has,  by  statute, 
been  harmonised  with  that  of  other  nations. 

26.  What  is  the  consequence  of  her  husband's 
death?  does  she  still  remain  a  foreigner?  Van  D)Tie 
says:  "The  tendency  of  opinion  seems  to  be  in  favour 
of  allowing  the  woman,  upon  the  death  of  her  husband, 
to  resume  her  American  citizenship,  if  she  desire,  on 


ENTIRE  OWNERSHIP  OF  LAND         37 

condition  that  she  return  to  the  United  States,  if 
residing  abroad."  *  This  statement  of  the  rule  or  prac- 
tice may  be  reinforced  by  Cockburn,  who  says:  "Pro- 
vision is  made,  in  all  the  continental  codes,  for  enabling 
a  woman  whose  nationality  of  origin  has  been  changed 
into  that  of  her  husband,  to  resume,  if  so  minded, 
her  original  nationality  on  becoming  a  widow;  on  the 
condition,  however,  if  not  resident  in  the  country  of 
origin,  of  returning  to  it." 

27.  One  point  more  should  be  noticed.  Does  her 
absolute  divorce  from  her  husband  afifect  her  citizen- 
ship in  the  same  way  as  the  death  of  her  husband? 
This  question  arose  on  the  application  of  Mrs.  Daisie 
Annie  Newman  Van  Buren  for  a  passport.  She  was 
the  daughter  of  an  American  citizen  and  had  married  a 
Dutch  baron.  Like  so  many  other  American  women 
married  to  foreign  barons  who  have  proved  to  be  bears 
or  worse,  the  marriage  relation  was  severed  and  she 
returned  to  this  country.  The  answer  to  the  inquiry 
was  given  by  Mr.  Hay,  Secretary  of  State,  to  the  Amer- 
ican minister  at  Berne,  Switzerland.  "  In  accordance,' ' 
the  Secretary  says,  "with  the  view  which  the  Depart- 
ment has  taken  in  several  cases,  when  an  American 
woman  marries  an  alien,  her  condition  from  the  stand- 
point of  nationality  is  lost  in  that  of  her  husband,  as 
long  as  the  marital  union  lasts.  Upon  its  termination 
she  may  resume  the  nationality  of  her  birth  by  re- 
turning to  the  United  States  to  reside,  if  residing  abroad, 
or  acquire  a  new  one.  In  this  case  Mrs.  Van  Buren's 
status  under  the  laws  of  the  Netherlands  calls  for  no 


'Page    139. 


398271 


S8      BUSINESS  MAN'S  LEGAL  ADVISER 

consideration.  She  does  not  live  in  that  country, 
nor  does  she,  apparently,  intend  to  do  so.  Her 
divorce  having  been  lawfully  obtained,  her  marital 
relations  with  Baron  Van  Buren  having  ceased,  her 
domicile  being  bona  fide  in  this  country,  you  may 
properly  issue  a  passport  in  her  favour." 

28.  Lastly,  persons  have  been  naturalised  on  several 
great  occasions  by  treaty.  The  most  noteworthy  of 
these  are  the  treaty  of  1794  with  Great  Britain,  with 
France  in  1803,  with  Spain  in  181 9  and  1898,  and  with 
Mexico  in  1848  and  1853.  The  status  of  the  Porto 
Ricans  and  Filipinos  under  the  last  treaty  with  Spain 
has  been  the  subject  of  most  elaborate  exposition  by 
the  highest  federal  tribunal  in  the  so-called  Insular 
cases. 

29.  At  common  law  an  alien  may  acquire  real 
estate  by  deed  or  devise,  but  cannot  hold  it  against 
the  state.  The  sale  to  such  a  purchaser  is  a  cause 
of  forfeiture  to  the  state  in  a  proceeding  established 
for  that  purpose  if  it  chooses  to  act,'  if  it  does  not  act, 
the  alien  purchaser  may  maintain  a  suit  for  land  thus 
acquired  like  any  other  person.' 

An  alien  may  also  acquire  real  estate  from  the  state 
by  legislative  action,  and  a  deed  or  patent  may  be 
issued  to  him  by  the  proper  officer.  The  right  to 
acquire,  hold  and  dispose  of  real  estate  may  be  granted 
to  aliens  by  the  United  States  by  treaty,  or  by  statute, 
and  in  most  of  them  nearly  all  the  disabilities  affecting 
resident  aliens  by  the  common  law,  have  been  re- 

*Wright  V.  Saddler,  20  N.  Y.,  320,  324. 
*Gray  V.  Kaufiman,  82  Tex.,  65. 


ENTIRE  OWNERSHIP  OF  LAND  39 

moved.  By  the  Nebraska  constitution  "no  distinc- 
tion shall  ever  be  made  between  resident  aliens  and 
citizens  in  reference  to  the  possession,  enjoyment 
or  descent  of  property."  Non-resident  aliens,  how- 
ever, are  regarded  very  diflFerently.  Thus,  in  Idaho 
aliens  who  have  not  declared  their  intention  to 
become  citizens  cannot  acquire  farming  lands. 
Again,  aliens  may  enforce  liens  and  judgments  against 
real  property  and  may  also  inherit  it;  but,  if  it  be  not 
sold  within  five  years,  it  escheats  or  belongs  i:o  the 
state.  In  Illinois,  too,  although  an  alien  may  acquire 
real  property  like  citizens,  it  escheats  to  the  state, 
unless  he  becomes  a  citizen  within  six  years  from  the 
time  of  acquiring  ownership.  In  other  words,  the 
policy  of  the  state  is  to  permit  anyone  to  acquire  and 
hold  real  property  and  to  give  him  all  the  time  neces- 
sary for  becoming  a  citizen.  If,  on  the  other  hand, 
he  refuses  to  become  a  citizen,  he  is  divested  of  owner- 
ship —  a  regulation  which  seems  to  be,  in  every  way, 
wise  as  the  permanent  ownership  of  real  property 
ought  not  to  be  vested  in  persons  residing  in  other 
countries. 

In  Iowa  non-resident  aliens  may  acquire  and  hold 
one  hundred  and  twenty  acres  of  real  property,  but 
no  more,  unless  it  is  taken  by  devise  or  descent. 
When  thus  acquired  it  may  be  held  for  twenty  years. 
At  the  end  of  that  time  it  escheats  to  the  state,  unless 
it  has  been  conveyed  to  a  bona  fide  purchaser  for  value, 
or  imless  the  alien  has  become  a  resident  of  the  state. 
The  law  in  Kansas  may  be  thus  stated:  A  man  may 
acquire  real  property  if  he  has  declared  his  intention 


40      BUSINESS  MAN'S  LEGAL  ADVISER 

of  becoming  a  citizen,  and  may,  during  the  succeeding 
six  years,  dispose  of  it  in  the  same  manner  as  a  citizen 
on  complying  with  the  conditions  of  registry.  Non- 
resident aliens,  however,  are  debarred  from  acquiring 
the  title  to  real  estate,  except  by  descent  or  devise; 
and  when  thus  acquired,  they  must  dispose  of  the  same 
within  three  years,  unless  they  are  minors,  who  have 
two  years  longer.  Should  they  not  comply  with  the 
law,  it  escheats  to  the  state,  imless  it  has  been  sold 
to  a  bona  fide  purchaser  for  value.  Minor  aliens  who 
are  residents  of  the  United  States  may  acquire  title 
to  land  by  purchase,  and  may  hold  it  for  six  years 
after  declaring  their  intention  to  become  citizens. 

In  Kentucky  an  alien  may  take  by  devise  or  descent, 
and  hold  the  land  for  eight  years.  In  Louisiana  there 
are  no  statutory  restrictions  on  aliens  relating  to  real 
pronerty.  In  Minnesota  aliens  who  have  not  declared 
their  intention  to  become  citizens  cannot  acquire  real 
property  except  by  devise  or  inheritance.  The  law 
there  does  not  apply  to  right  by  treaties  or  to  actual 
settlers  who  do  not  own  more  than  one  hundred  and 
fifty  acres.  They  may  also  acquire  and  hold  lots  of 
fifty  feet  frontage  by  three  hundred  feet  deep  in  any 
incorporated  city.  In  Texas  a  somewhat  different 
regulation  prevails.  Resident  aliens  have  the  same 
rights  as  citizens,  but  if  they  discontinue  their  residence 
they  must  dispose  of  their  real  estate  within  ten  years. 

In  Washington  the  ownership  of  lands  by  aliens  who 
have  not  declared  their  intention  to  become  citizens  is 
prohibited,  except  when  acquired  by  inheritance,  by 
mortgage,  or  in  the  regular  course  of  justice  in  collect- 


ENTIRE  OWNERSHIP  OF  LAND         41 

ing  a  debt.  Conveyances  to,  or  in  trust  for,  aliens 
also  are  void.  But  this  prohibition  does  not  extend 
to  mineral  lands  and  those  necessary  for  their  de- 
velopment. In  Wisconsin  non-resident  aliens  cannot 
acquire  by  purchase  more  than  three  hundred  and 
twenty  acres.  In  Nebraska  "no  non-resident,  alien 
foreigner  who  has  not  declared  his  intention  to  become 
a  citizen  of  the  United  States,  nor  any  corporation  or 
association  not  incorporated  under  the  laws  of  the  state 
shall  acquire  or  own,  hold  or  possess,  by  right,  title 
or  descent  accruing  hereafter,  any  real  estate  in  the 
state  of  Nebraska."*  Lastly  may  be  mentioned  Wy- 
oming, in  which  non-resident  aliens  are  not  permitted 
to  acquire  any  real  estate,  except  by  inheritance, 
or  in  the  ordinary  course  of  justice  in  collecting  a  debt. 
From  this  review  of  the  rights  of  aliens,  it  will  be  seen 
that  the  laws  are  extremely  liberal,  and  aim  at  giving 
those  who  reside  here  and  intend  to  become  citizens  the 
same  rights  as  are  enjoyed  by  the  citizens  themselves. 
The  chief  restriction  is  on  non-residents  —  the  law 
aiming  to  give  them  a  few  years  in  which  to  dispose  of 
land  that  may  come  to  them  by  inheritance  or  other- 
wise, and  prohibiting  them  from  retaining  its  perma- 
nent ownership.  This  is  the  general  imderlying  idea 
of  the  legislation  pertaining  to  aliens. 

>  Laws  of  1887.  Ch.  65. 


CHAPTER  ni 

MODES  OF  ENTIRE  OWNERSHIP 

§  I.  Acquisition  of  Land  by  Purchase.    Deeds 

1.  Agreement  to  purchase  must  be  in  writing. 

2.  What  this  must  contain. 

3.  When  an  oral  bargain  can  be  enforced. 

4.  Money  paid  can  be  recovered. 

5.  Law  of  place  of  location  governs  the  parties. 

6.  Kinds  of  deeds: 

a. —  Quit-claim, 
b. —  Indenture, 
c. —  Warranty, 
d. —  Lease. 

7.  On  what  a  deed  must  be  written. 
[  8.  Filling  blanks. 

9.  Alterations: 

a. —  Unimportant  alterations, 

b. —  Are  they  presumed  to  be  made  before  or 

after  the  delivery  of  the  writing? 
c. —  The  safe  practice. 

10.  Lost  deed. 

11.  Deed  by  minor: 

a. —  Is  his  deed  void  or  voidable? 
b. —  What  is  a  confirmation? 
c. —  Illustrations. 

42 


MODES  OF  ENTIRE  OWNERSHIP        43 

12.  Deed  by  insane  person. 

13.  Deed  by  executor  or  administrator. 

14.  Deed  by  married  woman. 

15.  Execution  of  deed  through  fraud. 

16.  Names  of  grantor  and  grantee  should  appear  in 

deed. 

17.  Grantee  must  exist: 

a. —  Deed  to  fictitious  person, 

h. —  To  an  estate  of  a  person, 

c. —  To  future  estates  immediately  given, 

d. —  To  estate  in  remainder, 

e. —  To  trustee  of  future  estate, 

/. —  To  an  xmorganised  corporation. 

18.  Need  of  seal: 

a. —  No  one  need  be  present  when  affixed, 
b. —  Several  may  use  same  seal, 
c. —  Seal  of  corporations, 
d. —  What  is  a  seal? 

19.  Witnesses. 

20.  Execution  by  agent  or  attorney. 

21.  Mode  of  signing. 

22.  Reading  of  deed  by  grantor. 

23.  Dating. 

24.  Delivery: 

a. —  Test  of,  is  control, 

b. —  Deed  must  be  complete, 

c. —  May  be  actual  or  verbal, 

d. —  Delivery  by,  or  to,  a  corporation, 

e. —  Delivery  to  unknown  grantee, 

/. —  Delivery  of  deed  containing  a  condition, 

g. —  To  what  time  title  relates. 


44      BUSINESS  MAN'S  LEGAL  ADVISER 

h. —  Deed  of  confirmation, 

i. —  EflFect  of  delivery  between  parties. 

25.  Acceptance. 

26.  Delivery  of  deed  as  an  escrow. 

27.  Recording. 

28.  Rights  of  parties  between  delivery  and  recording. 

29.  Acknowledgment. 

30.  It  is  a  ministerial  act. 

31.  Reason  for  acknowledging  certificate. 

32.  Nature  and  effect  of  certificate. 

33.  Acknowledgment  by  married  woman. 

34.  Effect  of  defective  acknowledgment. 

35.  Authority  of  person  to  take  it. 

36.  Acknowledgment  taken  in  foreign  country. 

37.  Only  owner  of  land  can  acknowledge  it. 

38.  Evidence  to  explain  deed. 

39.  Correction  of  deed. 

40.  Description: 

a. —  Monuments  control  courses  and  distances, 

b. —  Kinds  of  monuments, 

c. —  Which  kind  is  of  highest  value, 

d. —  Monuments  that  mark  public  lands, 

e. —  Monuments  that  mark  a  city  lot. 

41.  Boundary  by  non-navigable  stream. 

42.  Boimdary  by  tidal  navigable  stream. 

43.  Boimdary  by  non-tidal  navigable  stream. 

44.  Boimdary  by  a  lake. 

45.  Boundary  by  a  highway. 

46.  Boundary  by  a  private  way. 

47.  Boundary  by  a  park. 

48.  Quantity. 


MODES  OF  ENTIRE  OWNERSHIP        45 

49.  Reference  to  other  deeds. 

50.  What  passes. 

51.  Covenants: 

a. —  Number, 

b. —  Covenant  of  right  to  convey, 
c. —  Covenant  of  possession, 
d. —  Covenant  against  encumbrances, 
e. —  Covenants  for  quiet  enjoyment  and  war- 
ranty, 
f. —  Special  covenants, 
g. —  Implied  covenants, 
h. —  Covenant  does  not  protect  purchaser  from 

surety, 
i. —  Distinction  between  real  and  personal  cove- 
nants, 
j. —  What  covenants  are  personal,  and  what  real, 
k. —  Tendency  is  to  regard  covenants  as  real, 
I. —  What  particular  covenants  run  with  the 

land, 
m. —  Covenants  concerning  encumbrances, 
n. —  Covenants  concerning  quiet  enjoyment, 
0. —  Covenants    concerning    right    to    convey, 
p. —  Damage  for  breaking  a  covenant. 

,/.  One  of  the  most  common  ways  of  acquiring  land 
in  by  purchase.  After  making  an  oral  bargain,  the 
pifeparation  and  delivery  of  the  deed  is  often  delayed 
for  several  days,  or  a  longer  period.  If  there  is  no 
written  memorandum  of  the  bargain  it  is  possible  for 
either  party  to  decline  to  fulfil  his  part  of  the  agree- 
ment, and  the  other  is  powerless  to  enforce  it.    Morally 


46      BUSINESS  MAN'S  LEGAL  ADVISER 

of  course,  this  is  wrong;  but  the  law  can  do  nothing 
unless  the  oral  bargain  was  reduced  to  some  kind  of 
writing. 

2.  What  must  this  writing  contain?  By  a  statute, 
essentially  a  copy  of  an  English  one,  the  writing  must 
describe  the  land  suflSciently  to  identify  it;  and  must  be 
signed  by  the  person  whom  the  other  seeks  to  hold.'  A 
better  form  of  writing  is  signed  by  both  parties,  and 
then  each  can  hold  the  other.  They  can  sign  with  a 
lead  pencil;  even  a  stamped  signature  will  suffice.  An 
agent  can  sign  for  his  principal.  The  writing  need  not 
express  the  amount  or  consideration  that  is  to  be  paid 
for  the  land.  A  letter  or  series  of  letters  from  which  the 
terms  of  a  contract  can  be  collected  will  satisfy  the  law. 

3.  Notwithstanding  this  statute,  there  are  cases  in 
which  an  oral  bargain  can  be  enforced.  This  may  seem 
to  be  an  overthrow  of  the  statute  itself.  When  parties 
have  actually  made  an  agreement  to  convey,  and  the 
vendor  or  seller  has  actually  transferred  the  possession 
to  the  vendee,  this  is  such  evidence  of  a  purchase  or 
transfer  that  the  courts  will  recognise  the  transaction 
and  compel  its  full  performance.  If  the  agreement 
were  not  carried  out  by  the  vendor,  there  would  be 
manifest  fraud,  and  the  vendee  would  be  a  trespasser. 
In  such  cases  the  courts  compel  the  vendor  to  execute 
his  promise  and  to  give  a  deed  to  the  other  party  to 
whom  he  has  sold  his  land.  Possession  by  the  pur- 
chaser is  always  an  indispensable  element  in  such 
a  legal  proceeding. 

'  For  a  more  complete  description  of  the  ttatnte,  see  Vol.  HI.,  Chap.,  11. 
Section  3,  subdivision  5. 


MODES  OF  ENTIRE  OWNERSHIP        47 

To  this  rule  there  is  one  exception.  Between  a  land- 
lord and  a  tenant  possession  would  be  no  evidence  of  a 
contract  of  sale,  because  the  tenant  is  occupying  under 
a  lease. 

4.  The  payment  of  purchase  money  is  not  sufficient 
proof  of  an  agreement  to  sustain  an  action  for  com- 
pelling the  execution  of  the  contract.  Once  the  law  was 
otherwise;  courts  acted  on  such  evidence  and  com- 
pelled the  other  party  to  perform  his  agreement. 
Experience  proved  that  this  was  a  dangerous  practice. 
Sometimes  a  fraud  was  committed  by  maintaining 
that  money  was  given  in  part  payment  for  the  land, 
when,  in  truth,  it  was  given  for  something  else.  So 
the  courts  finally  abandoned  this  ground;  therefore, 
when  money  is  now  paid,  instead  of  compelhng  the 
vendor  to  fulfil  his  promise  by  giving  a  deed,  he  is 
required  to  refund  the  money. 

5.  It  is  a  maxim  of  the  law  that  the  title  to  lands  can 
be  acquired  or  lost  only  by  the  laws  of  the  state  where 
they  are  located.  The  rule  has  been  recently  thus 
expressed:  "No  man  has  any  vested  right  to  dispose 
of  any  property,  by  whatever  title  he  holds,  in  any 
other  way  than  that  by  which  the  law  prescribes." 

6.  In  conveying  land  by  one  individual  to  another 
several  kinds  of  deeds  are  in  use: 

(a)  First  may  be  mentioned  a  release  or  quit-claim 
deed,  whereby  the  grantor  or  seller  conveys  or  parts 
with  whatever  interest  he  may  have  in  the  land  con- 
veyed. This  deed  is  signed  only  by  the  grantor,  and 
becomes  effective  by  delivery  to,  and  acceptance  by, 
the  purchaser. 


48      BUSINESS  MAN'S  LEGAL  ADVISER 

(b)  The  second  kind  of  deed  is  known  as  an  inden- 
ture. This  is  signed  by  all  the  parties.  In  many  cases 
copies  are  made  corresponding  with  the  number  of 
parties  or  individuals  signing  the  instrument. 

(c)  Thirdly  may  be  mentioned  a  deed  of  warranty, 
which  may  te  in  form  like  a  quit-claim  deed,  or  a  deed 
of  indenture  with  additional  stipulations,  called  cov- 
enants, that  are  of  the  highest  importance.  These 
covenants  give  the  deed  a  higher  character  than  that 
of  a  release  or  quit-claim;  and  for  that  reason  it  is 
generally  used  in  conveying  real  estate  in  nearly 
every  state  of  the  Union. 

(d)  In  conveying  an  interest  in  land  for  a  short 
period  the  writing  is  called  a  lease,  though  it  is  also  a 
deed,  but  differing  in  many  ways  from  those  above 
mentioned. 

7.  A  deed  must  be  written,  so  it  is  said,  on  parch- 
ment or  paper;  this  is  not  strictly  true,  for,  if  one  were 
written  on  stone,  as  were  the  laws  of  Moses,  it  would 
doubtless  answer  the  law.  Nor  does  the  law  require 
accuracy  or  precision  in  the  use  of  words,  or  obser- 
vance of  grammatical  rules.  Any  writing  from  which 
the  intention  of  the  parties  can  be  clearly  gathered  is 
sufl&cient  by  the  modern  law. 

8.  It  is  a  fundamental  principle  that  the  writing 
must  be  completed  before  delivery,  and  that  additions, 
alterations,  erasures,  or  interlineations  must  be  made 
before  the  delivery  of  the  deed.  If  made  afterward 
they  either  avoid  the  instrument,  or  are  of  no  effect. 
Says  Washburn:  "If  the  contract  thereby  evidenced 
is  an  executory  one,  any  material  alteration  made  by 


MODES  OF  ENTIRE  OWNERSHIP        49 

the  holder  or  a  stranger  will  avoid  it,  unless  done  by 
consent  of  the  maker,  or  without  the  knowledge  and 
assent  of  the  holder."  * 

9.  (a)  A  dififerent  rule  applies  to  unimportant 
alterations.  Thus,  a  lessee,  after  the  lessor's  death, 
altered  the  words  "E  Street"  to  "W  Street";  this  was 
not  a  material  alteration,  because  other  parts  of  the 
lease  showed  that  the  original  should  have  been  "W 
Street."  We  are  now  going  on  dangerous  groimd 
Such  alterations  will  stand  only  when  they  are  not 
material,  or  clearly  appear  from  other  parts  of  tH 
instrument  to  be  its  true  purpose  or  design.  Thus,  a 
mortgagee  who,  without  the  other  party's  knowledge, 
increases  the  amount  of  the  consideration,  thereby 
invalidates  the  mortgage.  A  grantee  who  admits  an 
alteration  of  his  deed  by  himself,  but  with  the  grantor's 
consent,  must  prove  that  such  consent  was  given. 

(b)  What  is  the  legal  presumption  concerning  the 
time  of  making  them  —  before  or  after  the  delivery  of 
the  writing?  Different  rules  have  been  declared. 
Perhaps  the  Missoiui  rule  is  as  rational  as  any  other 
that  may  be  applied.  The  law  will  presume  that  the 
alteration  was  made  before,  or  at  least  contempora- 
neously with,  the  signing  of  the  writing,  unless  peculiar 
circiunstances  of  suspicion  are  evident  upon  the  face, 
and  even  then  the  whole  question  is  one  for  the  jury 
to  settle  upon  the  facts,  what  and  where  and  with  what 
intention  the  alteration  was  made. 

(c)  The  safe  practice  is,  in  all  cases  after  making  the 
erasure  or  alteration,  to  note  it  in  some  way  on  the 

*  Washburn  on  Real  Property,  §  3og4,  p.  220  (6tb  Edition). 


so       BUSINESS  MAN'S  LEGAL  ADVISER 

writing  itself,  showing  that  it  was  made  before  its  de- 
livery/ By  every  good  conveyancer  such  a  clause 
is  added.'' 

10.  The  loss  of  a  deed  after  its  delivery  does  not 
destroy  the  title  of  the  grantee.  A  court  of  equity  will 
establish  the  possession  of  a  party  who  claims  title 
under  a  lost  deed,  or  grant  such  relief  as  the  circum- 
stances of  the  case  may  require.  Again,  in  such  a  case 
should  the  purchaser  fail  to  prove  his  title,  but  should 
prove  the  loss  of  his  deed  and  the  payment  of  the  money 
he  may  recover  it,  or,  if  the  title  of  a  part  should  fail, 
he  can  recover  a  part  of  the  money  he  has  paid.' 

11.  Not  every  person  is  legally  capable  of  making  a 
deed.  Of  these,  minors  may  be  mentioned  first.  They 
cannot  make  a  conveyance  of  real  estate  beyond  attack 
or  questioning.  The  courts  differ  widely  concerning 
the  worth  of  such  a  conveyance. 

(a)  Some  affirm  that  such  a  deed  is  voidable;  in 
other  words,  the  minor,  after  attaining  his  majority, 
can  set  it  aside  or  declare  he  will  not  be  bound  thereby, 
as  he  pleases.  Other  courts  declare  that  such  a  deed 
is  void  absolutely;  is  of  no  more  account  than  a  piece 
of  waste  paper.  The  general  tendency  of  the  courts 
is  toward  the  doctrine  of  voidability;  wherever  this 
prevails,  the  transaction,  after  the  minor  becomes  of 
age,  may  endure. 

1  Washburn,  §   aop?,  p.  2J3. 

*  Devlin  says:  "Where  there  has  been  a  material  alteration  in  a  deed, 
the  deed  to  the  extent  of  such  alteration  has  become  a  new  deed,  and  the  al- 
teration may  be  of  such  a  character  as  entirely  to  change  the  original  deed. 
It  should,  therefore,  to  give  effect  to  the  alteration,  be  redelivered,  and,  if  it 
has  been  acknowledged  before  alteration,  should  be  again  ackaowledged." 
§  462a,  Vol.  I.,  p.  593. 

*g4  Am.  St.  Rep.,  469. 


MODES  OF  ENTIRE  OWNERSHIP        51^ 

(b)  In  these  states,  the  question  arising  in  every  case, 
after  a  minor  has  attained  his  majority,  is,  has  he 
taken  any  action  to  show  whether  he  has  avoided  or 
confirmed  his  deed?  Whether  he  has  done  so  or  not 
is  a  question  of  ordinary  fact.  Time,  often,  is  very 
important  in  answering  this  question.  If,  for  example, 
a  minor  who  has  given  a  deed  takes  no  action  to  avoid 
or  set  it  aside  months  after  attaining  his  majority  it  is 
held  that  he  approves  or  ratifies  his  action.  Forge t- 
fulness  to  act  will  not  suffice.  But,  if  he  were  sick  at 
the  time  of  attaining  his  majority  the  law  lengthens 
the  period  for  acting. 

(c)  Many  illustrations  might  be  given  of  the  ratifi- 
cation of  deeds  by  minors.  In  one  of  them,  in  which  a 
tenant  had  occupied  a  house  for  six  years  after  the 
lessor  became  of  age,  the  courts  held  that  he  had 
thereby  ratified  the  lease.  In  another  case  acquies- 
cence for  four  years  was  deemed  sufficient. 

In  Vermont  a  minor  who  wishes  to  avoid  his  deed 
made  in  infancy  must  do  so  within  reasonable  time  after 
coming  of  age.  Likewise,  in  Connecticut,  neglect  to 
disaffirm  the  deed  within  a  reasonable  time  after  at- 
taining majority  is  sufficient  evidence  of  ratification. 
In  Missouri  a  grantor,  after  attaining  his  majority, 
expressed  himself  satisfied  with  his  former  act,  and 
promised  to  execute  a  confirmatory  deed,  but  ten 
months  afterward  died  before  doing  so;  this  was  a 
ratification.  In  Massachusetts  the  courts  say  any 
distinctive  act  or  recognition  is  competent  evidence 
of  a  ratification. 

12.  The  deeds  of  insane  people  fall  nearly  in  the 


52      BUSINESS  MAN'S  LEGAL  ADVISER 

same  category  as  those  of  minors.  They  are  not 
capable  of  giving  deeds  absolutely  binding  on  them. 
It  is  sometimes  declared  that  they  cannot  receive  a 
deed  for  the  same  reason. 

13.  Executors  and  administrators  are,  to  some  ex- 
tent, disqualified  froifi  acting.  As  they  act  in  a  rep- 
resentative capacity,  they  can  go  only  so  far  as  the 
law  prescribes.  Trustees,  technically  so  called,  can 
act  only  in  a  limited  way,  and  if  they  exceed  their 
limitations  are  either  boimd  personally  or  not  at  all. 

14.  Married  women  are  also  in  this  category.  For- 
merly, their  right  to  act  was  extremely  limited;  by 
statute,  in  all  the  states,  larger  rights  have  been  given 
to  them  to  convey  their  property.  Nevertheless,  as 
we  shall  hereafter  learn,  they  have  not  as  complete 
rights  as  unmarried  women.  Again,  neither  husband 
nor  wife  can  make  a  conveyance  directly  to  each  other. 
It  is  true  that  property  is  often  conveyed  by  one  to 
the  other,  through  the  mediimi  of  a  third  person,  not 
by  direct  action. 

In  many  states  a  married  woman  can  now  convey 
her  own  property  without  joinder  of  her  husband's 
written  consent  expressed  in  the  deed,  except  so  far  as 
this  may  be  necessary  to  defeat  his  right  as  tenant  by 
the  curtesy.  *  This  would  seem  to  be  essentially 
the  same  limitation  as  the  law  attaches  to  his  right 
to  convey  his  real  estate,  for,  in  many  states,  he  cannot 
do  this  without  her  written  consent.  In  other  words, 
he  cannot  cut  ofif  her  right  of  dower  without  her  volun- 
tary action.    As  the  states  have  prescribed  by  statute 

'.See  Chap.  IV.,  Section  a,  for  a  description  of  tenancy  by  curtesy. 


MODES  OF  ENTIRE  OWNERSHIP        53 

the  rights  of  a  married  woman  to  make  contracts,  in- 
cluding her  authority  to  part  with  her  lands,  nothing 
further  need  be  said  on  the  subject  in  this  place. 

Formerly,  she  could  not  appoint  an  attorney  to 
convey  her  land  for  her.  By  the  modern  rule,  where- 
ever  she  has  the  right  to  sell  her  land,  independently 
of  her  husband,  she  can  exercise  this  authority  by  an 
attorney.  There  has  been  a  great  deal  of  learning 
expended  on  this  subject,  but,  in  one  of  the  federal 
cases,  Justice  Peckham  said  there  was  no  particular 
reason,  when  a  wife  can  convey  directly,  why  she 
cannot  authorise  another  to  do  the  act  for  her.  "The 
reasoning  which  would  prevent  it  is,  as  we  think,  too 
technical,  fragile,  and  refined  for  constant  use." ' 

15.  The  deed  of  one  who  is  induced  by  the  fraud  of  a 
grantee  is  not  void  but  voidable.  The  grantor  may 
rescind  the  contract  within  a  reasonable  time  after 
discovering  the  fraud,  repay  the  consideration,  and 
demand  the  recovery  of  his  land. 

16.  In  making  a  deed  the  names  of  the  grantor  and 
the  grantee  should  appear;  sometimes  mistakes  are 
made,  for  conveyances  are  often  written  by  persons 
who  have  a  very  imperfect  knowledge  of  the  mode  of 
preparing  and  executing  such  writings.  The  law  looks 
at  the  substance  of  things  rather  than  at  technical 
forms;  consequently,  a  deed  in  which  the  name  Edward 
appears  in  the  earlier  part,  but  which  is  signed  Edmund, 
is  valid.  Another  principle,  quite  in  harmony  with 
this,  has  been  adopted;  one  who  accepts  a  deed  in 
which  his  name  is  not  correctly  stated  or  spelled  is 

I  waiiams  v.  Paine,  169  U.  S.,  67. 


54      BUSINESS  MAN'S  LEGAL  ADVISER 

deemed  to  have  adopted  that  name  for  the  purpose 
of  acquiring  and  holding  the  title  to  the  property. 

The  omission  of  a  person's  middle  name  will  not 
vitiate  a  deed,  for  the  law  requires  only  one  Christian 
name.  Since  the  time  of  William  the  Conqueror,  a 
full  name  consists  of  one  Christian  name,  or  given 
name,  and  one  surname  or  patron)miic,  the  two,  using 
the  Christian  name  first  and  the  surname,  constituting 
the  legal  name  of  a  person.  Anyone  may  have  as 
many  middle  names  or  initials  as  are  given  to  him,  or 
as  he  chooses  to  take.  They  do  not  affect  his  legal 
name,  and  may,  or  may  not,  be  inserted  in  a  deed 
without  affecting  its  legal  validity.  For  the  same 
reason  a  mistake  in  the  middle  initial  of  the  name  is  not 
material  in  legal  proceedings,  nor  is  a  similar  omission 
in  the  acknowledgment  of  a  deed  which  contains  the 
letter  in  the  body  of  the  deed  itself. 

To  call  a  person  senior  instead  of  junior,  as  intended, 
or  vice  versa,  does  not  affect  the  validity  of  a  deed. 
Again,  to  describe  a  person  by  the  character  given  to 
him  by  general  repute  will  suffice,  even  though  it  is 
not  the  literal  truth.  Likewise,  to  call  a  man  by  the 
name  he  is  usually  called,  though  this  differ  from  his 
baptismal  name.  But  a  deed  to,  or  by,  a  person  by 
a  surname  only,  without  something  to  show  who  was 
intended,  would  be  void. 

17.  Property  must,  at  all  times,  have  an  owner;  it 
is  impossible  for  one  person  to  part  with  his  ownership 
unless  there  is  another  person  to  take  it  from  him. 
Consequently,  a  deed  to  a  person  having  no  existence 
passes  no  title  from  the  grantor. 


MODES  OF  ENTIRE  OWNERSHIP        55 

(fl)  A  deed,  therefore,  to  a  fictitious  person  is  void. 
But  a  distinction  exists  between  a  fictitious  person  and 
a  person  existing  with  a  fictitious  name.  In  the  former 
case  the  deed  is  worthless;  in  the  latter,  if  the  true 
person  can  be  ascertained,  the  title  to  him  wiU  pass. 

(b)  A  deed  to  an  estate  of  a  named  person  is  a 
nullity,  for  it  does  not  name  a  grantee  who  is  in  being 
and  capable  of  taking  the  estate  conveyed.  And  a 
deed  conveying  property  to  the  children  of  a  named 
person  will  be  effective  in  conveying  to  children  who 
were  living  at  the  time  of  executing  the  deed,  but  will 
not  include  children  born  afterward.  Furthermore, 
a  deed  to  children  who  should  be  alive  at  a  certain 
date  would  be  absolutely  void. 

(c)  To  sustain  an  immediate  estate  there  must  be  an 
existing  person.  Indeed,  it  would  be  a  contradiction 
in  terms  to  attempt  to  grant  such  an  estate  to  a  person 
not  in  existence. 

(d)  But  an  estate  in  remainder,  or  a  future  estate, 
may  be  granted  to  a  person  who  is  not  then  living. 
For  example,  an  estate  to  A  and  his  children  or  his 
heirs,  though  there  be  no  children  or  heirs  in  existence 
at  the  time  of  making  the  conveyance,  is  valid.  The 
unborn  grantee  must  appear  during  the  continuance 
of  the  present  or  intermediate  estate,  or  at  the  moment 
of  its  termination,  otherwise  there  is  no  one  in  exist- 
ence to  whom  the  remainder  can  descend,  and  it  would 
be  void. 

(e)  Sometimes  a  future  estate  is  created  through  the 
medium  of  a  trustee.  The  present  immediate  estate  is 
given  to  the  trustee,  who  is  to  hold  it  for  a  given  period, 


S6      BUSINESS  MAN'S  LEGAL  ADVISER 

or  until  other  persons  appear  to  whom  the  future 
estate  is  to  go.  In  these  cases  the  trustee  is  said  to 
hold  the  legal  estate,  and  the  beneficiary  the  equitable. 
This  mode  of  conveying  property  has  played  a  promi- 
nent part  in  both  American  and  English  law,  and  will 
be  fully  considered  hereafter. 

(/)  A  deed  to  a  corporation  not  yet  organised,  and 
consequently  not  actually  existing,  is  a  nullity,  for 
there  is  not  a  grantee  capable  of  taking  it.  This  is  the 
general  rule,  though,  in  some  states,  a  deed  to  an  un- 
incorporated company,  which  is  to  come  into  being  at 
an  early  date,  may  be  valid.  Cases  of  this  kind  oc- 
casionally happen  in  this  coimtry;  in  England  they  are 
frequent. 

1 8.  It  is  a  imiversal  practice  in  all  cases  to  affix  a  seal 
to  a  conveyance  of  land,  and  even  to  all  leases. 

(a)  It  is  of  no  importance  in  affixing  the  seal  whether 
the  grantor  or  grantee,  attorney,  or  stranger,  were 
present;  the  essential  thing  is  to  do  this  before  the 
delivery  of  the  writing. 

(6)  Any  number  of  grantors  may  use  the  same  seal. 
A  deed  prepared  for  several  to  execute,  to  which  only  a 
part  of  them  append  seals  to  their  names,  will  be  valid 
provided  it  be  properly  delivered  by  the  signers.  Of 
course,  it  will  not  bind  those  who  do  not  sign.  If  it  is 
signed  by  all  and  asserts  that  the  grantors  have  affixed 
their  seals,  and  there  are  not  as  many  seals  as  names, 
the  law  presiunes  that  s6me  of  the  signers  have  adopted 
the  seals  of  the  others.  This  is  one  of  those  numerous 
presumptions  which  play  such  an  important,  and 
generally  useful,  part  in  the  law. 


MODES  OF  ENTIRE  OWNERSHIP        57 

(c)  A  corporation  need  not  use  its  corporate  seal  in 
executing  a  deed;  the  use  of  any  seal  will  suffice. 
This  is  not  the  law  everywhere;  the  federal  courts, 
especially,  hold  that  a  corporation  must  use  its  cor- 
porate seal  and  affix  it  by  competent  authority. 
Furthermore,  a  corporate  seal  may  be  impeached  by 
showing  that  it  was  affixed  by  a  person  without  au- 
thority. 

(d)  What  is  a  seal,  to  some  extent  is  an  open  ques- 
tion. The  true  significance  of  one  has  largely  passed 
away.  Formerly,  seals  were  used  by  the  great  land- 
owners when  conveying  land,  as  the  highest  proof  of 
their  action,  because  generally  they  were  unable  to 
write  their  names.  As  every  person  had  a  seal  of 
his  own,  the  mark  was  quite  as  distinctive  as  a  written 
signature.  Since  most  persons  now  know  how  to 
write  their  names,  a  seal  has  less  significance.  Con- 
sequently, either  by  statute  or  common  law,  the  use 
of  L.  S.  enclosed  in  brackets,  thus  [L.  S.],  is  often  as 
effective  as  a  seal  of  wax  or  a  wafer. 

19.  In  nearly  all  states  the  names  of  the  witnesses 
who  have  attested  its  execution  are  subscribed  to  a 
deed.  By  the  common  law  an  attestation  was  not 
required  to  give  validity  to  a  deed,  nor  is  this  required 
even  by  statute  in  all  the  states.  It  is,  though,  a 
general  practice.  In  many  states,  by  statutory 
requirement,  every  deed  must  have  one  or  two  sub- 
scribing witnesses;  without  them  the  deed  is  invalid. 
Thus,  in  Michigan,  where  two  witnesses  are  required, 
a  deed  attested  by  only  one  was  declared  to  be  not  a 
legal  conveyance. 


S8      BUSINESS  MAN'S  LEGAL  ADVISER 

A  witness  need  not  see  a  party  to  a  deed  write  his 
name.  It  is  enough  if  he  asks  the  witness  to  subscribe 
to  the  attestation  clause,  and  the  latter  complies  in 
the  signer's  presence.  Witnesses  to  deeds  cannot^ 
like  witnesses  to  the  wills  of  testators,  express  opin- 
ions concerning  the  capacity  of  the  signers;  they  can 
merely  testify  to  the  fact  of  signing  as  a  witness, 
nothing  more. 

20.  A  deed  miy  be  executed  by  a  grantor,  or  by  his 
agent  or  attorney.  When  executing  a  deed  in  the 
latter  manner,  an  attorney  must  have  ample  authority 
of  a  character  as  high  as  that  of  the  deed  itself.  Gener- 
ally, he  is  given  authority  by  a  sealed  writing,  called  a 
power  of  attorney,  and  this,  also,  is  recorded  like  the 
deed  he  executes.  By  thus  recording  the  authority 
of  the  agent  to  act,  the  record  of  the  transaction  is 
made  complete. 

The  authority  of  corporations  to  execute  deeds  and 
hold  real  estate  depends  on  their  charters  and  the 
general  statutes  of  the  state. 

21.  Formerly,  the  courts  were  exceedingly  strict  in 
construing  the  precise  form  of  signing.  Thus,  a  deed 
signed  by  a  man  as  attorney  or  agent,  without  stating 
the  name  of  the  principal,  was  regarded  as  the  deed  of 
the  agent  or  attorney,  and  the  additional  word,  attor- 
ney or  agent,  was  rejected  as  surplusage.  The  books 
are  full  of  deeds  condemned  by  reason  of  the  attorney's 
failure  to  follow  the  precise  legal  form.  Without 
reviewing  these,  the  matter  may  be  cut  short  by  say- 
ing that  the  modern  courts  regard  the  intention  of  the 
signer.    When,  therefore,  the  fact  clearly  appears  that 


MODES  OF  ENTIRE  OWNERSHIP        59 

a  person  is  acting  as  agent  or  attorney  for  another,  and 
not  for  himself,  his  intention  will  be  given  to  the  writ- 
ing. Had  this  broad  and  rational  principle  been 
adopted  earlier  many  a  deed  would  have  been  construed 
very  differently. 

As  towns,  cities,  and  other  public  bodies  must  act 
by  attorney,  the  deeds  signed  by  their  attorneys  are 
regarded  in  all  cases  as  the  acts  of  the  bodies  they 
represent. 

22.  It  is  not  necessary,  under  ordinary  circumstances 
to  read  a  deed  to  the  grantor,  and,  as  he  is  presumed  to 
know  its  contents,  he  cannot  avoid  it  on  the  ground  of 
ignorance.  "A  deed  cannot  be  avoided  in  a  court  of 
law  except  for  fraud  in  its  execution,  or  other  fraud 
or  imposition  practised  upon  the  grantor  in  procuring 
his  signature  and  seal."^  A  different  rule,  though, 
must  be  applied  to  a  person  who  cannot  read,  or  who 
is  blind  or  ignorant.  He  can  insist  on  having  the  deed 
read  to  him,  and,  if  this  is  not  done,  or  if  it  is  read 
falsely,  or  its  contents  are  falsely  stated,  it  may  be 
set  aside. 

23.  A  deed  is  dated,  &.nd  this  is  presumed  to  be  the 
time  of  the  execution  and  deUvery.  In  indentures  the 
date  is  usually  at  the  beginning;  in  single  deeds,  at  the 
end.  Notwithstanding  this  presiunption,  proof  may  be 
given  to  show  that  the  date  inserted  was  not  the  true 
date  of  its  delivery.  Again,  it  is  said  that  a  date 
is  immaterial,  and,  consequently,  a  deed  would  not 
be  affected  if  the  date  were  impossible,  like  the  30th  of 
February. 

>  3  Washburn,  {  3141.    See  Truman  v.  Lore,  14  Ohio,  S  St.,  144,  15$. 


6o      BUSINESS  MAN'S  LEGAL  ADVISER 

24.  Delivery  is  essential  to  render  a  deed  valid;  but, 
like  so  many  other  apparently  simple  matters  in  the 
law,  it  is  not  always  easy  to  determine  what  is  a 
delivery. 

To  effect  a  delivery  two  things  are  needful.  The 
grantor  must  give  up  control  of  the  deed,  and  the  gran- 
tee must  actually  accept  it,  and  thereby  accept  the 
estate  therein  conveyed.  Consequently,  to  render 
this  action  valid,  both  the  grantor  and  the  grantee 
must  at  that  time  be  capable  of  thus  acting.  The 
delivery  of  a  deed  after  the  grantor's  death  is  not 
effective/ 

(a)  So  long  as  the  grantor  retains  the  legal  control 
of  the  deed,  the  title  does  not  pass.  Though  a  deed 
may  be  completed  in  every  respect,  except  actual  de- 
livery, the  transaction  is  not  effective  imtil  this  is 
done,  and  in  good  faith.  Therefore,  were  a  deed  taken 
out  of  a  drawer  by  a  thief  and  delivered  to  the  grantee 
named  therein,  no  title  would  pass  to  him  from  the 
grantor. 

(b)  Again,  the  instnmient  must  be  complete.  When, 
therefore,  it  is  given  to  another  for  the  purpose  of  ascer- 
taining whether  it  is  satisfactory  or  not,  or  of  doing 
something  in  connection  therewith  —  to  make  an 
examination  of  the  title,  for  example  —  this  is  pre- 
liminary to  final  action,  and  has  no  effect  in  the  way  of 
a  final  delivery  of  the  instrument. 

>  "  A  valid  delivery  is  accomplished  when  the  conduct  and  acts  of  a  grantor 
manifest  a  present  intent  to  dispose  of  the  title  conveyedby  the  deed.  Th^re 
is  no  piarticular  form  necessary,  but  any  act  or  thing  which  manifests  such  an 
intent  is  sufficient  to  establish  it.  It  is  alwa^  a  question  of  fact,  and  must 
be  determined  by  the  circumstances  surrounduig  eacL  particular  traoBOCtioD." 
Lorigan,  J.,  Kennifi  v.  Caulfield,  14  Cal.,  40. 


MODES  OF  ENTIRE  OWNERSHIP        6i 

(c)  A  delivery  may  be  actual  —  that  is,  by  doing 
something  and  saying  nothing;  or,  it  may  be  verbal 
by  saying  something  and  doing  nothing;  or,  it  may  be 
by  both  speech  and  action.  As  Washburn  says, 
"  there  must  be  an  intention  to  give  effect  to  the  deed. 
If  the  deed  is  lying  on  a  table  in  the  presence  of  the 
parties,  and  the  grantor  tells  the  grantee  to  take  it, 
and  this  is  done,  the  delivery  is  complete.  But  should 
one,  to  whom  a  deed  is  made,  get  possession  without 
the  grantor's  intention,  it  would  not  avail  him  any- 
thing, nor  transfer  the  title." 

(d)  Ordinarily,  nothing  further  is  required  to  con- 
stitute a  delivery  of  a  deed  by  a  corporation  than  to  put 
its  seal  thereon  by  the  consent  of  the  organisation, 
unless  its  execution  is  by  an  attorney.  When  thus 
executed,  it  does  not  become  the  corporation's  deed 
until  a  formal  delivery.  A  delivery  of  a  deed  to  an 
authorised  agent  of  a  corporation  is  a  delivery  to  the 
corporation  itself. 

(e)  A  deed  may  be  delivered  to  a  grantee  or  to  a 
stranger  unknown  to  the  person  for  whose  benefit  it  is 
made  when  this  is  the  maker's  intention.  In  such  a 
case  the  delivery  is  effective  the  moment  the  grantee's 
assent  is  given,  even  though  the  grantor,  during  the 
interval,  may  have  died.  In  one  case  a  soldier,  just 
before  entering  service,  made  a  conveyance  to  his  wife, 
which  he  left  with  other  papers  in  her  possession, 
though  she  had  no  knowledge  of  it.  Discovering  the 
deed  after  his  death,  the  court  held  that  this  was  a 
sufficient  delivery. 

(/)  A  deed  that  is  delivered  before  fulfilling  the  con- 


62      BUSINESS  MAN'S  LEGAL  ADVISER 

dition  that  may  be  attached  thereto  will  have  no  effect. 
The  act  is  a  manifest  wrong  to  the  grantor  and  is  not 
binding  on  him.  Whether  this  be  done  through  either 
fraud  or  mistake,  the  effect  is  the  same;  the  land  is  not 
transferred.  The  books  liken  such  a  transfer  to  that 
of  a  deed  which  the  grantee  has  stolen,  whereby  no 
title  is  gained,  though,  in  form,  the  instrument  may  be 
complete. 

(g)  After  the  deed  has  been  delivered  the  grantee's 
title  often  relates  back  to  the  time  of  putting  the  deed 
into  the  possession  of  the  third  party.  The  title  does 
not  always  run  backward  in  this  manner.  Whether 
the  deed  has  a  retroactive  effect  or  not  depends  rather 
on  the  intention  of  the  parties. 

(h)  A  deed  of  confirmation  may  make  a  voidable 
estate  good.  On  the  other  hand,  the  deed  does  not 
strengthen  the  estate  that  is  absolutely  void. 

(i)  Of  course,  the  delivery  of  a  deed  is  valid  between 
the  parties  themselves,  and  all  others  who  have  knowl- 
edge of  the  transaction,  or  have  any  reason  to  suppose 
that  the  conveyance  has  been  made.  The  occasions 
on  which  a  land-owner  attempts  to  practise  a  fraud  like 
this  are  happily  rare,  yet  they  are  frequent  enough  to 
require  a  statement  of  the  principles  of  law  that  apply 
when  they  occur. 

What  does  happen,  frequently,  is  the  attachment  of 
the  land  by  creditors  of  the  grantor.  The  law  favours 
the  grantee  in  all  cases  of  this  kind,  and  the  general 
rule,  is,  if  the  sale  has  been  made  in  good  faith,  although 
the  grantee  has  neglected  to  put  his  deed  on  record 
within  the  time  prescribed  by  law,  nevertheless,  he 


MODES  OF  ENTIRE  OWNERSHIP        63 

retains  his  ownership  as  perfectly  as  if  no  creditor  had 
attempted  to  take  away  his  land  from  him. 

25.  The  grantee's  acceptance  or  assent  must  also  be 
in  the  grantor's  lifetime,  unless  the  act  of  delivery  is 
one  of  a  continuing  nature,  such  as  leaving  a  deed  on 
deposit  to  be  accepted  by  the  grantee  at  his  election. 
Thus,  a  father  made  a  deed  to  his  son  and  left  it  in  the 
registrar's  office  to  be  recorded.  But  as  the  latter  had 
no  knowledge  of  it,  he  could  not  have  assented  to  the 
conveyance.  The  deed,  therefore,  never  passed  any 
title  to  the  land  to  the  son,  and  consequently  his  heirs 
had  no  title  thereto. 

The  law  presumes  that  a  deed  found  in  the  grantee's 
possession  has  been  delivered  and  accepted.  This  is  a 
presumption  and  nothing  more,  though  the  burden  of 
proof  is  on  the  attacking  party  to  show  the  fact  to  be 
otherwise. 

When  a  deed  is  delivered  to  a  person  who  is  under 
legal  disability  —  a  minor  or  insane  person,  for  ex- 
ample —  nothing  need  be  done  on  his  part  to  indicate 
its  acceptance.  If  the  grant  is  beneficial  to  him  the 
law  will  regard  the  delivery  as  an  acceptance, 

26.  Sometimes  a  deed  is  delivered  to  a  person  as  an 
escrow.  The  object  of  doing  this  is  to  require  the 
grantee  to  perform  some  condition  before  giving  him 
the  writing.  For  example,  a  deed  may  be  delivered  to 
another  to  keep  until  the  grantee  is  ready  to  pay  the 
consideration.  A  deed  thus  delivered,  until  the  failure 
of  the  condition,  cannot  be  recalled;  it  is  beyond  the 
maker's  control,  otherwise  it  would  not  partake  of  this 
character. 


64      BUSINESS  MAN'S  LEGAL  ADVISER 

Whether  a  deed  is  an  escrow  or  not  depends  largely 
on  the  intention  of  the  parties.  The  guiding  principle 
is  whether  the  grantor  has  entirely  parted  with  his  con- 
trol over  the  instrument.  Whenever  he  has,  then  the 
delivery  is  complete.  In  all  cases,  to  possess  this 
quality  of  an  escrow,  it  must  be  completely  executed 
in  all  respects  except  the  formal  delivery  to  the  grantee. 
When,  therefore,  a  deed  is  placed  in  the  hands  of  a  third 
person,  as  an  agent,  servant,  friend,  or  bailee  of  the 
grantor  for  safe  keeping  only,  and  not  for  delivery 
to  the  grantee,  the  transfer  does  not  constitute  a 
delivery,  and  the  deed  fails  for  lack  of  complete  exe- 
cution. 

Finally,  when  a  deed  is  thus  given  to  a  third  person 
for  delivery  to  another,  it  is  proper  that  some  words 
should  be  added  to  indicate  this  intention  of  the  parties. 
If  none  are  added  this  intention  should  be  expressed  in 
a  formal  manner. 

To  a  composition  deed  a  somewhat  different  prin- 
ciple applies.  If  this  is  delivered  to  a  creditor  on 
condition  that  it  sh£ll  be  void  unless  all  the  creditors 
sign,  it  is  an  escrow,  without  any  binding  obligation 
until  all  the  creditors  comply  with  the  terms. 

The  delivery  of  a  deed  as  an  escrow  has  no  effect 
until  the  performance  of  the  condition.  Therefore,  a 
creditor  of  the  grantor  who  should  levy  on  the  land  in 
order  to  satisfy  a  debt  of  some  kind  would  hold  it  by 
virtue  of  his  levy  in  preference  to  the  grantee  in  the 
deed.  Again,  the  grantee  would  take  subject  to  any 
grant  made  by  the  grantor  after  the  delivery  in  escrow 
and  before  the  happening  of  the  condition.     As  an 


MODES  OF  ENTIRE  OWNERSHIP        65 

example,  a  grant  of  right  of  way  over  the  grantor's 
land  to  a  railroad  company.  The  grant  would  be 
effective  to  convey  the  land,  notwithstanding  the 
execution  and  delivery  of  the  deed  to  a  third  party  to 
be  kept  by  him  until  the  fulfilment  of  the  condition 
by  the  grantee. 

27.  In  this  country  the  practice  is  very  general  to 
record  all  conveyances  of  land,  in  public  oflSces  estab- 
lished for  that  purpose.  This  practice  has  prevailed 
from  the  earliest  times,  and  it  has  wrought  wonders  in 
the  way  of  simplifying  the  titles  to  real  estate  and  in 
rendering  their  transfer  easy  and  secure.  Anyone  can 
readily  understand  that,  where  no  system  of  recording 
prevails,  and  a  title  is  simply  oral  or  written  on  a  piece 
of  paper  which  may  be  easily  lost,  possession  of  the 
property  purchased  is  essential  to  render  the  owner 
secure.  With  the  progress  of  civilisation  and  the  per- 
fecting of  a  system  for  recording  deeds,  the  possession 
of  property  is  becoming  less  essential  as  a  security  to 
the  owner.  In  other  language,  by  virtue  of  our  system 
of  recording  deeds,  it  is  safe  enough  to  buy  property, 
although  the  buyer  may  have  never  seen  it,  and  has 
no  intention  of  taking  formal  possession.  Indeed, 
he  is  just  as  secure  as  he  would  be  by  going  on  the  land 
and  making  a  formal  entry,  as  was  done  in  the  olden 
time. 

The  recording  of  a  deed  is  not  conclusive  proof  of  its 
delivery  and  acceptance,  even  though  the  instrument  is 
taken  to  the  recorder's  oflfice  for  record  by  the  grantee 
or  his  agent.  Cases  have  happened  in  which  an  in- 
strument has  been  delivered,  recorded,  and  afterward 


66      BUSINESS  MAN'S  LEGAL  ADVISER 

taken  away  from  the  recorder's  office  by  the  granto*, 
without  any  knowledge  whatever  by  the  grantee  of  the 
transaction.  In  such  cases,  as  there  is  no  deUvcry. 
there  can  be  no  acceptance. 

Generally  speaking,  the  recording  of  a  deed  is  a 
notice  to  all  the  world  of  the  transaction;  but  in  fact, 
this  is  not  always  so,  even  between  a  grantor  and 
grantee,  as  there  is  no  particular  reason  why  an  un- 
known grantee  should  visit  the  recorder's  office  for 
the  purpose  of  finding  out  whether  anyone  has  made 
a  grant  to  him  or  not. 

28.  What  are  the  rights  of  parties  between  the  time 
of  delivering  and  recording  a  deed?  Surely  there 
ought  to  be  no  division  of  legal  opinion  on  such  an 
important  subject.  As  the  object  of  recording  is  to 
give  notice  of  the  transaction  to  all  the  world,  so  any 
transfer  made  between  the  time  of  delivery  and  re- 
cording ought  not  to  affect  any  party  who  is  acting 
in  good  faith.  Suppose  a  grantor  should  make  a 
second  conveyance  between  the  time  of  making  the 
first  and  its  delivery  for  record  in  the  public  office. 
The  purchaser  who  buys  in  good  faith,  and  pays 
the  price  therefor,  ought  not  to  suffer  by  his  trans- 
action; but  rather  the  first  grantee,  because  it  is  his 
unquestioned  duty,  under  ordinary  circumstances, 
to  leave  his  deed  for  record  as  soon  as  possible  after 
receiving  it. 

In  many  states  though,  by  statute,  purchasers  have 
three  months  or  even  longer  period  to  record  their 
deeds  during  which  they  are  fully  protected  from  the 
consequences  of  any  action  by  the  vendor.    Of  course 


MODES  OF  ENTIRE  OWNERSHIP        67 

"between  the  parties  to  the  deed,  or  the  heirs  or  de- 
visees of  the  grantor,  and  the  grantee  and  those  claim- 
ing under  him,  the  validity  of  the  deed  is  not  afifected 
by  the  want  of  record;  and  the  same  is  true  as  to  all 
purchasers  who  may  take  a  subsequent  deed,  knowing 
of  the  existence  of  a  prior  one."  * 

29.  In  some  states  the  law  requires  a  deed  to  be 
acknowledged  in  order  to  pass  the  title.  In  others  a 
deed  may  convey  a  title  as  against  the  grantor  and 
his  heirs,  even  though  it  be  not  acknowledged.  Gen- 
erally the  acknowledgment  is  a  requirement  merely  of 
the  law  regulating  the  registration  of  deeds.  In  most 
states  the  statutes  prescribe  the  manner  of  acknowledg- 
ing or  proving  a  deed  before  it  can  be  recorded.  A 
statute  declaring  an  instrument  void  unless  it  is  ac- 
knowledged, is  not  imconstitutional. 

A  principle  of  general  application  is,  a  deed  must  be 
acknowledged  by  the  laws  of  the  state  where  the  land 
lies.  The  certificate  of  acknowledgment  must  be  a 
substantial  compliance  with  the  requirement  of  the 
law. 

30.  An  acknowledgment  is  a  ministerial,  and  not  a 
judicial,  act;*  consequently,  an  officer  who  thus  serves, 
and  is  related  to  the  party  making  the  acknowledgment, 
is  not  disqualified  by  reason  of  his  relationship.  But 
an  acknowledgment  by  an  officer  who  is  interested  in 
the  conveyance  would  not  be  legal.  Is  a  bank  official, 
who  is  also  a  stockholder,  disqualified  from  taking 
or  releasing  a  mortgage  to  or  from  the  bank?    The 

I  3  Washbum,4§  aioo,  p.  agi. 

'Washburn,  $  hqa,  p.  387.  ^ 


68      BUSINESS  MAN'S  LEGAL  ADVISER 

courts  generally  have  said  that  he  was,  but  statutes 
of  recent  years  have  been  passed  in  the  states  authoris- 
ing him  to  act  in  such  cases.  Furthermore,  it  must  be 
done  by  an  ofl&cer  within  the  territorial  limits  of  his 
appointment.  A  notary  public  of  Pennsylvania 
could  not  acknowledge  a  deed  in  another  state,  or  an 
oflScer  having  authority  to  act  in  a  single  coimty  could 
not  take  an  acknowledgment  of  a  deed  in  another. 

31.  An  important  reason  for  acknowledging  in- 
struments is  to  prepare  them  for  use  as  evidence. 
Those  which  are  not  acknowledged  or  proved  as  re- 
quired by  statute  cannot  be  admitted  as  evidence 
without  proving  that  they  have  been  executed.  But 
even  when  not  acknowledged,  they  may  be  used  for 
some  legal  purposes. 

32.  A  certificate  of  an  officer  is  not  conclusive 
evidence  of  its  truthfulness,  as  the  law  says  it  is  prima 
facie  evidence  and  nothing  more.  It  is  presumed  to 
be  correct,  but  may  be  set  aside  or  impeached  by  proper 
evidence. 

The  courts  strive  to  uphold  an  acknowledgment 
whenever  this  can  be  done  with  due  regard  to  the 
statute  prescribing  the  mode  of  making  it;  conse- 
quently, obvious  clerical  errors  are  not  regarded,  such 
as  the  misspelling  of  the  grantor's  name,  and  other 
apparent  mistakes. 

33.  At  common  law  a  married  woman  had  no  power 
to  convey  land,  indeed  to  make  contracts  of  any  kind. 
Her  right,  therefore,  to  make  deeds  is  by  statute,  which 
in  every  state  prescribes  how  her  acknowledgment 
shall  be  taken.    The  principal  end  sought  to  be  accom- 


MODES  OF  ENTIRE  OWNERSHIP        69 

plished  by  this  is  to  render  the  act  her  own,  and  not 
one  of  coercion  by  her  husband.  The  statutes  gener- 
ally require  that  the  transfer  of  any  interest  she  may 
have  in  land  must  be  acknowledged,  for  example,  a 
release  of  dower,  a  power  of  attorney  to  convey  her 
property,  or  the  sale  of  the  entire  or  lesser  interest  in 
her  land.  "A  married  woman  has  no  capacity  to 
contract  for  the  sale  of  her  real  estate,  or  to  convey  it 
except  in  the  precise  statutory  mode  conferring  the 
power."' 

In  most  of  the  states  the  statutes  require  a  private 
and  separate  examination  of  the  wife  apart  from  her 
husband.  The  certificate  by  the  acknowledging  officer 
must  show  this  fact,  or  it  will  be  void.  "The  ac- 
knowledgment should  be  made  after  the  examination 
and  explanation.  It  is  not  sufficient  that  she  ac- 
knowledged the  deed  with  her  husband,  and  it  was  sub- 
sequently fully  explained  to  her,  and  she  declared 
that  she  had  executed  it  voluntarily  and  did  not  desire 
to  retract  it." ^ 

34.  What  is  the  effect  of  a  defective  acknowledg- 
ment? Unless  a  statute  is  in  the  way,  such  an  ac- 
knowledgment is  valid  against  aU  who  know  of  its 
existence.  But  against  a  subsequent  purchaser,  who 
does  not  know,  the  instrument  has  no  validity.  Again, 
as  such  an  instrument  ought  not  to  be  recorded,  the 
recording  will  not  be  effective  against  persons  having 
no  actual  notice.  On  the  other  hand,  if  the  certificate 
of  acknowledgment  is  regiilar  on  its  face,  it  is  the  re- 

'  Glidden  v.  Strupler,  53  Pa.,  400. 
*  Devlio  on  Deeds,  §  552. 


70      BUSINESS  MAN'S  LEGAL  ADVISER 

cording  officer's  duty  to  record  it,  and  the  record  will 
serve  as  a  notice  to  all  notwithstanding  the  hidden 
defect  contained  in  the  certificate. 

A  defective  acknowledgment  of  a  married  woman's 
deed  is  worthless,  nor  will  a  court  of  equity  compel  her 
to  execute  an  agreement  thus  acknowledged.  A  sub- 
sequent conveyance,  however,  by  her  of  the  same  prop- 
erty will  be  valid.  Nor  can  life  be  given  to  a  defective 
deed  by  recording  it.  And  when  her  deed  is  void 
because  defectively  acknowledged,  it  cannot  be  ratified 
during  her  married  life  except  by  a  proper  acknowl- 
edgment, at  which  time  it  becomes  effective.  After 
her  husband's  death  she  may  ratify  such  a  deed  by 
another  delivery. 

35.  The  person  taking  an  acknowledgment  must 
possess  proper  authority,  otherwise  it  is  worthless. 
The  statutes  of  the  different  states  prescribe  who  may 
thus  act.  They  include  judges,  justices  of  the  peace, 
notaries  public,  clerks  of  courts  of  record,  commis- 
sioners of  deeds,  recorders,  and  mayors  of  cities.  An 
acknowledgment  by  an  officer  in  fact  is  effective  even 
if  he  is  not  a  legal  officer.  Furthermore,  if  an  officer, 
whoever  he  may  be,  has  authority  to  appoint  a  deputy, 
he  also  may  take  acknowledgments,  except  in  those 
states  in  which  the  act  is  deemed  a  judicial  one.  In 
these  a  deputy  cannot  act  imless  authorised  by 
statute. 

36.  An  acknowledgment  taken  in  a  foreign  coimtry 
is  not  effective  in  any  state  unless  taken  before  a 
person  authorised  by  the  laws  of  that  state  to  take 
acknowledgments.    The  record  of  a  deed  purporting 


MODES  OF  ENTIRE  OWNERSHIP        71 

to  be  acknowledged  before  an  oflScer  not  known  to 
the  laws  of  a  state  cannot  be  admitted  as  evidence, 
unless  his  authority  to  thus  act  be  shown/  Authority 
is  given  by  most  or  all  of  the  states  to  notaries  public, 
also  to  the  consuls,  vice  consuls  and  commercial  agents 
of  the  United  States. 

37.  No  one  can  acknowledge  a  deed  except  the 
grantor  or  person  who  has  sold  the  land.  But  an 
acknowledgment  by  one  of  several  grantors,  will 
satisfy  the  statute  of  some  states  with  respect  to  regis- 
tration, and  use  as  evidence.  The  same  rule  applies 
to  the  deed  of  a  partnership. 

An  agent  or  attorney  who  has  authority  to  sign  a 
deed,  has  authority  also  to  acknowledge  it,  and  the 
same  rule  applies  to  a  deputy,  and  a  corporate  officer. 
But  a  married  woman  cannot  authorise  an  attorney 
to  make  for  her  an  acknowledgment;  this  she  must 
do  herself.  A  public  officer  who  has  executed  a  deed 
during  his  term  of  office  may  acknowledge  it  after  his 
term  has  expired.* 

38.  Oral  or  parol  evidence  may  be  admitted  to 
explain  words  of  art  or  technical  terms  used  in  a  deed, 
which  are  not  readily  understood.  But,  in  a  deed 
containing  everything  needful  for  understanding  the 
intention  of  the  parties  there  is  no  room  or  occasion 
for  introducing  oral  evidence. 

39.  Under  some  circumstances  a  deed  may  be  cor- 
rected. The  general  rule  is,  it  may  be  amended  in  all 
cases  of  accident,  fraud  or  mistake.    If  the  grantor  is 

>  De  Segond  v.  Culver,  xo  Ohio,  i88. 

*  Town  of  Lemington  v.  Stevens,  48  Vt.,  38. 


72      BUSINESS  MAN'S  LEGAL  ADVISER 

unwilling  to  make  the  proper  correction,  whereby  it 
will  conform,  to  the  intention  of  the  parties,  the  grantee 
may  apply  to  a  court  of  equity  for  such  a  correction  as 
will  render  the  instrument  a  fair  and  honest  expression 
of  the  true  agreement. 

40.  Formerly,  when  land  was  of  less  value  than  at 
present,  the  description  or  boimdary  of  land  conveyed 
by  deed  was  often  very  imperfect.  With  the  denser 
settlement  of  the  country,  more  care  is  taken  in  de- 
scribing it.  One  of  the  rules  of  construction  is  that^an 
imperfect  description  cannot  be  mended  or  controlled 
by  oral  evidence.  For  this  reason,  among  others,  the 
extremest  care  should  be  taken  to  define  the  premises 
with  the  utmost  certainty.  Another  rule  of  construc- 
tion is  that  a  deed  should  favour  the  grantee,  but  this 
is  applied  only  when  other  rules  fail  to  remove  the 
doubt  or  ambiguity.  It  need  hardly  be  added 
that  the  construction  put  on  the  deed  should  be 
reasonable. 

(a)  In  construing  a  description,  monuments  will 
control  courses  and  distances.  This  is  based  on  a 
soimd  principle.  They  are  less  likely  to  be  destroyed, 
or  be  wrong,  than  courses  or  distances.  In  making 
ordinary  surveys  courses  may  vary  by  reason  of  local 
attraction  of  the  compass;  and  errors  in  distance  may 
be  due  to  inequalities  of  the  surface. 

(6)  There  are  two  kinds  of  monuments  —  natural 
and  artificial.  Among  the  natural  monuments  are 
streams,  ponds,  lakes,  shores,  trees  and  highways, 
which  are  silent  but  effective  informants.  When  lost 
or  removed,  or  there  is  doubt  which  of  two  objects  is 


MODES  OF  ENTIRE  OWNERSHIP        73 

the  monument,  oral  evidence  may  be  admitted  to 
clear  up  the  difficulty. 

(c)  The  location  of  a  monument  is  a  question  of  fact 
for  a  jury.  Again,  it  is  asserted  that  natural  monu- 
ments are  of  higher  value  than  artificial  ones,  but  this 
rule,  perhaps,  may  be  questioned,  especially  if  the 
artificial  monument  has  been  prepared  with  great  care 
and  is  of  durable  nature.  Surely,  a  large  stone  that 
is  put  in  a  secure  place,  is  a  more  secure  boundary  than 
a  tree  that  may  be  blown  down,  or  than  a  small,  way- 
ward stream  whose  course  may  be  changed  by  a  freshet. 
When  a  line  is  described  as  running  from  one  monu- 
ment to  another,  the  law  always  contemplates  a 
straight  line.  Furthermore,  a  line  that  is  described 
as  running  from  a  given  point  to  a  natural  object,  like 
a  highway  or  a  stream,  imless  the  course  or  length  of 
the  line  is  given,  must  be  the  shortest  one  that  can 
be  drawn  from  the  point  to  the  object. 

(d)  In  marking  the  public  lands  of  the  Western 
territories,  the  statutes  have  prescribed  some  rules  that 
are  imperative.  The  surveys  often  call  for  artificial 
monuments  to  designate  the  corners  of  the  tract. 
These  monuments  control  the  courses  and  distances. 
To  this  rule  two  exceptions  may  be  noted:  first,  in  a 
deed  that  calls  for  natural  monuments;  and  second,  in 
a  description  that  refers  to  a  township  and  section, 
one  or  more  corners  of  which  have  been  lost.  In  the 
first  case  the  general  rule  concerning  monuments  con- 
trols the  boundary,  both  the  artificial  monuments  and 
the  courses  and  distances,  although  maps  and  field- 
notes  would  indicate  a  different  location.    But  when 


74       BUSINESS  MAN'S  LEGAL  ADVISER 

a  natural  and  artificial  monument  cannot  be  ascer- 
tained by  any  proper  evidence,  then  course  and  distance 
must  cover  the  location  of  the  boundary,  and  this 
rule  prevails  with  respect  to  lost  corners.  Oral  evi- 
dence is  admitted  to  establish  the  location  of  monu- 
ments, and  even  hearsay  evidence,  and  evidence  of 
general  reputation,  may  be  admitted  in  such  cases. 

(e)  Courses  and  distances  of  a  small  city  lot  play  a 
more  prominent  part  in  determining  the  boundaries. 
The  reason  is  that  the  courses  and  distances  are  ascer- 
tained with  more  care,  are  shorter  and,  therefore,  it  is 
possible  to  define  them  with  greater  accuracy  than  in 
the  case  of  a  farm  or  a  very  large  tract.  When  walls, 
fences,  and  the  like  form  monuments  of  some  appre- 
ciable thickness,  the  boundary  is  always  to  the  centre 
of  the  monument.  In  the  cities  especially  land  is 
becoming  so  valuable  as  to  make  this  point  worthy  of 
notice. 

41.  The  boundary  of  land  by  a  non-navigable  stream 
is  the  centre,  changing  with  its  course.  Again,  one 
who  owns  both  banks  has  a  title  to  the  land  between 
them  and  may  lawfully  maintain  a  fence  across  the 
stream.* 

It  is  not  true,  though,  that  the  centre  of  a  stream 
always  forms  the  boundary  line.  If  land  is  described  as 
bounded  on,  or  running  along  a  river,  the  centre  is  the 
boundary.  But  the  stream  is  excluded  by  bounding 
land  on  the  bank,  or  shore,  or  by  other  words  clearly 
indicating  an  intention  to  exclude  the  stream  itself. 

42.  The  boundary  by  a  tidal  navigable  stream  is  the 

*  See  Sec.  s,  §  a. 


MODES'  OF  ENTIRE  OWNERSHIP        75 

high-water  mark.  In  Massachusetts  and  some  other 
states,  by  statute,  low-water  mark  forms  the  boundary 
of  land  located  on  navigable  rivers  and  by  the  sea. 
In  both  cases  a  riparian  owner  has  a  right  to  erect  and 
maintain  wharves  extending  from  his  land,  subject  to 
public  control.  The  same  rule  applies  to  him  as  applies 
to  the  owners  of  land  bounded  by  the  sea.  The  shore 
or  beach  is  the  property  of  the  state. 

The  title  to  a  navigable  stream  forming  the  boundary 
of  a  state  passes  to  low-water  mark,  and  the  grantee 
can  use  the  land  between  high-  and  low- water  mark  for 
his  own  private  purpose,  provided  that  his  use  does  not 
interfere  with  the  public  rights  of  navigation,  fishery 
and  improvements. 

43.  The  boundary  by  a  non- tidal  navigable  stream  is 
not  so  clearly  determined.  In  some  states,  by  statute, 
the  lands  over  which  navigable  streams  flow  belong  to 
the  state,  and  the  implication  clearly  is  that  the  land  of 
all  other  streams  belongs  to  the  adjacent  owners,  the 
line  between  them  running  in  the  centre.  The  lands 
within  a  state  that  makes  no  claim  to  them  extend  to 
the  centre  of  the  stream,  subject,  of  course,  to  the 
public  rights  of  navigation. 

44.  The  boundary  of  a  natural  pond  or  lake  is  low- 
water  mark;  and  the  same  rule  applies  to  the  boundary 
to  a  natural  pond,  raised  artificially.  Nor  will  the  con- 
version of  a  fresh-water  pond  into  a  salt  pond  by  arti- 
ficial means  change  the  law  concerning  the  rights  of  the 
land-owners.  To  an  artificial  pond  a  different  rule 
applies,  the  boimdary  is  through  the  centre. 

The  title  to  the  bed  of  all  lakes,  ponds,  and  navigable 


76      BUSINESS  MAN'S  LEGAL  ADVISER 

rivers  to  the  line  of  ordinary  high-water  mark  within 
the  boundaries  of  many  states  was  vested  in  them  on 
their  admission  into  the  Union.  Their  waters  are  thus 
forever  preserved  for  the  enjoyment  of  their  citizens  to 
the  same  extent  that  the  public  are  entitled  to  enjoy 
tidal  waters  at  the  common  law.  Nor  can  anyone 
divert  or  transfer  the  public  title  to  such  lands,  by 
grant  or  otherwise,  to  individuals  or  an  association. 

Again,  the  state  title  does  not  change  by  reason  of 
the  fact  that  the  lakes  and  ponds  are  artificially  filled 
so  as  to  raise  the  land  above  the  surface  of  the 
water. 

45.  The  same  rules  of  construction  apply  to  land 
bounded  by  a  highway  as  to  that  bounded  by  a  non- 
navigable  stream.  If  the  words  of  description  are 
"by  or  along  a  highway,"  and  the  like,  the  land  ex- 
tends to  the  thread  or  centre  of  the  way,  and  nothing 
short  of  clearly  expressive  words  will  work  an  exclusion. 
Even  some  descriptions  of  land  "by  the  side"  of  a 
highway  have  not  thus  operated,  for  the  reason  that 
the  scrivener  evidently  intended  to  convey  to  the 
centre.  The  cases  of  exclusion,  therefore,  are  very 
rare.  One  reason  seems  to  be  almost  conclusive; 
namely,  that  the  grantor  would  have  no  use  for  the 
land  used  as  the  highway  unless  he  retained  the  land 
on  the  opposite  side,  or  unless  it  is  clearly  shown  that 
there  was  something  to  be  gained  by  retaining  it  as 
against  the  grantee  —  a  mine,  for  example. 

The  adjoining  owners  of  land  bounded  by  a  highway 
which  is  subsequently  abandoned,  can  extend  their 
lines  to  the  centre.    A. different  rule  may  be  applied 


MODES  OF  ENTIRE  OWNERSHIP        77 

if  one  of  the  adjoining  proprietors  can  prove  that  he 
had  a  right  to  more  than  half. 

Again,  the  covenants  in  a  deed  of  land  bounded  by  a 
street  or  highway  do  not  relate  to  the  land  over  which 
the  public  exercise  public  rights.  In  other  words,  the 
covenants  pertain  simply  to  the  land  enclosed,  and  not  to 
the  soil  in  which  the  public  exercises  its  right  of  passage. 

46.  To  land  bounded  by  a  private  way  no  right  of 
way  is  acquired  by  the  grantee.  If  the  grantor  does 
not  own  the  land  no  covenant  will  be  implied  from  a 
reference  to  a  deed  for  the  purpose  of  description. 

47.  To  land  boimded  by  a  park  a  somewhat  different 
principle  applies.  The  grantee  takes  only  to  the 
interior  line  of  the  park,  and  not  to  the  centre. 

48.  The  quantity  of  land  conveyed  is  sometimes 
given,  more  often  the  exact  quantity  is  unknown;  in 
no  case  is  the  quantity  permitted  to  control  the  courses, 
distances,  or  monuments.  Generally,  deeds  contain  a 
clause,  "more  or  less,"  in  order  to  save  the  grantor 
from  liability  on  his  covenants  with  respect  to  the 
quantity.  By  inserting  this  clause  no  return  of  any 
part  of  the  purchase  money  can  be  demanded,  should 
there  be  a  deficiency  in  the  quantity,  imless  the  state- 
ment is  infected  with  fraud. 

49.  Sometimes,  instead  of  giving  a  description  of  the 
land,  the  deed  refers  to  other  deeds  containing  a  de- 
scription. When  this  is  done  the  effect  is  similar  to  an 
insertion  of  the  description  in  the  subsequent  deed. 
In  like  manner  plans  or  maps  of  monuments,  courses 
and  distances,  to  which  reference  is  made,  become  a 
part  of  the  conveyance. 


78      BUSINESS  MAN'S  LEGAL  ADVISER 

50.  Whatever  belongs  to  the  land  granted  will  pass 
therewith,  although  not  specially  mentioned:  houses, 
window-blinds,  doors,  mines,  and  the  like.'  What- 
ever is  a  fixture  goes  with  the  premises.  The  law  re- 
gards the  grantor's  right  to  remove  things  far  more 
narrowly  than  those  of  the  tenant,  and  for  a  sound 
reason.  It  is  reasonable  to  suppose  that,  as  a  tenant's 
occupancy  is  only  temporary,  he  does  not  intend  to 
benefit  his  landlord  by  affixing  things  to  the  soil  for 
the  lessor's  enjoyment  after  the  cessation  of  the  ten- 
ancy. On  the  other  hand,  a  grantor  who  is  the  owner 
puts  everything,  so  the  law  presumes,  on  the  land  — 
houses,  improvements  of  all  kinds  —  with  a  view  to 
permanency,  and  not  of  removal.  Rarely,  indeed, 
can  things  which  form  naturally  a  part  of  the  realty, 
and  were  annexed  for  its  more  perfect  enjoyment  be 
removed  by  the  vendor  after  the  sale.  In  like  manner 
buildings  that  he  has  erected,  whatever  may  be  the 
mode  of  their  construction,  are  a  part  of  the  realty  and 
pass  therewith  to  the  purchaser. 

An  exception  or  reservation  may  be  made  in  a  deed, 
which,  of  course,  has  the  effect  of  retaining  the  title  to 
whatever  is  excepted  or  reserved.  If  repugnant  to  the 
grant,  the  exception  or  reservation  is  void. 

51.  Another  important  part  of  a  deed  consists  of  the 
covenants  of  title,  as  they  are  called.  These  stipula- 
tions or  agreements  are  of  great  practical  importance, 
yet  are  very  imperfectly  understood. 

(a)  There  are  five  of  these,  though  not  all  are  found 
in  modern  conveyances;  covenants  of  seisin,  or  posses- 

>  See  Chap.  VI.,  §§  i,  a. 


MODES  OF  ENTIRE  OWNERSHIP        79 

sion;  the  right  to  convey;  against  encumbrances;  for 
quiet  enjoyment;  and  warranty.  In  many  states 
only  the  last  covenant  is  generally  employed.  In 
the  older  states  all  of  them  are  often  found.  Like 
many  other  legal  principles,  they  run  into  one  another 
and  are  not  clearly  separated,  and,  for  that  reason,  wiK 
be  considered  under  less  than  five  heads. 

(6)  The  right  to  convey  is  the  right  to  convey  the 
title  to  the  land  itself  at  the  time  of  the  sale.  But,  if 
he  does  not  own  the  legal  title,  or  is  not  in  possession  of 
the  land  itself,  the  covenant  is  at  once  broken,  and  the 
grantee  can  bring  an  action  against  him  for  convey- 
ing what  he  did  not  own. 

(c)  The  covenant  of  possession  is  defined  to  be  an 
assurance  that  the  grantor  has  both  in  quantity  and 
quality  the  various  estates  which  he  professes  to  con- 
vey; therefore,  any  outstanding  right  or  title  which 
diminishes  the  quality  or  quantity  will  be  a  breach  of 
the  covenant.  It  is  broken  if  the  estate  is  of  less 
duration  than  that  mentioned,  or  if  the  quantity  is  less 
than  that  described.  The  covenant  is  broken  also 
when  the  land  conveyed  has  fences,  buildings  or  other 
erections  belonging  to  other  persons,  unless  there  is  an 
exception  made  to  them  in  the  deed.  But  the  existence 
of  an  easement  —  for  example,  a  highway  or  a 
railroad  —  is  not  a  breach  of  the  covenant,  nor  an 
outstanding  judgment  or  right  of  dower,  for  the 
reason  that  the  grantee  is  presumed  to  know  of 
their  existence. 

(d)  The  covenant  against  encumbrances  is  intended 
to  provide  security  against  the  claims  of  third  persons. 


8o      BUSINESS  MAN'S  LEGAL  ADVISER 

The  most  common  form  of  encumbrance  is  a  mortgage;^ 
but  there  are  others:  a  right  of  dower,  a  judgment  lien, 
taxes,  an  outstanding  lease.  There  may  be  easements 
on  the  land,  railroads,  private  rights  of  way,  rights  to 
water-courses,  the  right  to  cut  trees,  maintain  dams 
and  aqueducts;  though  in  some  states  this  rule  is  not 
so  sweeping.  "In  Pennsylvania,  Kentucky,  Wis- 
consin, Iowa,  and  Virginia  a  public  highway  in  use 
is  not  deemed  an  encumbrance  in  the  conveyance 
of  lands.  And  such  is  the  tendency  of  the  opinion 
of  the  courts  of  New  York.  But  in  Indiana,  Alabama, 
Vermont,  Massachusetts, ,  Connecticut,  New  Hamp- 
shire and  Maine,  a  public  highway  is  an  encumbrance, 
and  contitutes  a  breach  of  the  covenants  in  a  deed  of 
the  land  over  which  it  exists." ' 

(e)  The  covenant  for  quiet  enjoyment  is  in  common 
use  in  England,  but,  although  inserted  in  the  deed  in 
America,  requires  little  construction,  as  it  is  of  essen- 
tially the  same  nature  as  the  covenant  of  warranty. 
This  covenant  is  the  most  general  of  all.  In  the 
Western  and  Southern  states,  especially,  it  is  the  one 
most  generally  used. 

This  is  a  personal  obligation  binding  the  warrantor 
and  his  personal  representatives,  and  also  his  heirs  and 
devisees,  when  they  are  expressly  mentioned.  Even 
then  their  liability  is  not  indefinite,  but  only  to  the 
extent  of  the  assets  or  property  received  by  them  from 
the  warrantor.  As  a  personal  covenant  or  agreement 
its  virtue  is  gone  after  a  period  fixed  by  statute,  and  dif- 
fering considerably  in  the  several  states.     When  it  is 

'  3  Washburn,  §  2385,  p.  441. 


MODES  OF  ENTIRE  OWNERSHIP        8i 

broken  the  convenantee  is  entitled  to  an  action  against 
the  covenantor.' 

(/)  Besides  these  covenants,  deeds  sometimes  con- 
tain special  covenants  of  warranty  against  claims,  past 
transactions,  special  damages,  defects,  etc.  A  not  un- 
common covenant  is  that  the  grantor  will  not  erect  a 
building  on  an  adjoining  lot,  or  not  within  a  specified 
distance  from  the  line,  etc.  The  mere  mention  of  these 
will  suflSce,  because  the  operation  of  them  is  essentially 
the  same  as  in  other  cases.  They  are  special  in  every 
sense,  and  how  far  they  bind  depends  entirely  on  their 
construction. 

(g)  Deeds  may  contain  implied  covenants,  but  the 
law  seems  to  be  opposed  to  raising  these  when  there  are 
express  ones.  Nevertheless,  both  express  and  implied 
covenants  that  are  not  inconsistent  with  each  other 
may  exist;  when  they  do  the  implied  covenants  fail 
so  far  as  they  are  opposed  to  the  express  ones. 

(h)  A  covenant  does  not  protect  the  vendee  or  pur- 
chaser from  suits,  or  save  him  harmless  from  the  ex- 
pense of  them.  Thus,  suppose  a  person  claims  a 
private  right  of  way  over  the  land  of  the  purchaser,  and, 
having  been  refused  the  right  to  exercise  it,  brings  his 
action  to  enforce  his  right.  Though  failing  in  his 
suit,  nevertheless  the  purchaser  has  incurred  no  little 
vexation  of  spirit  and  loss  of  money  in  defending  his 
title.  Yet  he  cannot  call  on  his  grantor  to  reimburse 
him.  The  grantor  would  reply,  "I  warranted  your 
title  to  be  good,  and  the  sviit  has  proved  the  warrant 
to  be  good.    I  am  sorry  that  anyope  should  have  been 

>  Tiedeman  on  Real  Property,  S  S$6,  p.  699. 


82       BUSINESS  MAN'S  LEGAL  ADVISER 

so  foolish  as  to  set  up  a  false  claim  thereon  and  attempt 
to  enforce  it;  but  I  did  not  promise  that  everybody 
would  let  you  alone,  for,  though  not  knowing  much, 
I  do  know  that  fools  are  still  numerous." 

(i)  Besides  the  covenants  mentioned,  there  is 
another  division  into  personal  and  real,  and  it  is  im- 
portant to  understand  the  distinction  between  them. 
Personal  covenants  exist  simply  between  the  parties 
to  a  deed;  real  covenants  run  with  the  land  —  in  other 
words,  they  bind  the  covenantor,  the  covenantee,  and 
their  heirs  and  assigns. 

Thus,  if  a  covenant  is  personal  between  A  and  B  and 
the  covenantee,  B,  sells  the  land  to  C,  who  finds  a  flaw 
in  the  title,  he  cannot  sue  A,  because  the  warrant  or 
covenant  was  between  A  and  B,  and  not  between  A 
and  C.  A  covenant,  therefore,  is  said  to  be  personal 
when  it  binds  only  the  original  parties  to  a  deed.  When 
does  this  happen? 

Suppose  A  covenants  and  agrees  to  bind  himself,  his 
heirs  and  his  assigns  by  his  deed.  The  covenantee,  of 
course,  thinks  that  A's  heirs  and  assigns  are  bound, 
but  this  is  not  always  so.  The  language  says  so,  but 
the  law  declares  that  the  covenantor  did  not  mean 
what  he  says.    What,  then,  did  he  mean? 

The  law  declares  that  if  the  covenantor  asserted  in 
his  deed  that  he  was  the  owner  and  possessor  of  the 
land  sold,  when  in  fact  he  was  not,  this  is  a  personal 
covenant  and  does  not  run  with  the  land,  and  does  not, 
therefore,  bind  A's  heirs.  The  reason  for  this  rule  is 
extremely  artificial  and  narrow.  A  covenant  never 
continues  to  run  with  land  after  it  is  broken.    As  A 


MODES  OF  ENTIRE  OWNERSHIP        83 

was  not  the  owner  of  the  land  at  the  time  of  the  sale, 
his  covenant  was  broken  instantly,  and  so,  notwith- 
standing the  words  he  used  in  the  deed,  it  did  not  run 
with  the  land  and  it  bound  only  himself. 

What  remedy,  then,  if  any,  has  the  covenantee? 
He  can  sue  A  on  his  personal  covenant  to  recover  for 
the  damage,  if  he  is  alive;  if  he  is  dead,  the  covenantee 
can  sue  A's  representative  —  that  is,  his  executor  or 
administrator  if  he  still  possess  any  legal  capacity,  but 
he  cannot  sue  A's  heirs;  they  escape. 

(J)  Having  shown  the  importance  of  the  distinction 
between  personal  and  real  covenants,  the  next  inquiry 
is,  what  covenants  or  agreements  are  personal,  and 
what  are  real?  Instead  of  giving  plain  practical 
answers  to  this  question,  the  law  is  sadly  confused, 
nor  do  the  courts  manifest  much  disposition  to  aid 
individuals  through  the  thicket.  This  is  one  of  the 
subjects  that  ought  to  be  lighted  up  by  a  statute. 

First,  it  is  an  essential  element  of  a  real  covenant  that 
it  has  for  its  object  something  annexed  to,  or  inherent 
in,  the  land.  The  first  criterion  for  determining 
whether  a  given  covenant  runs  with  the  land,  or  not, 
is  its  nature  and  purpose.  When  this  is  not  decisive 
the  intention  of  the  parties  as  shown  in  their  deed 
must  determine  the  question. 

Second,  aU  covenants  relating  to  the  title  of  the  land 
that  are  not  broken  on  its  transfer  to  the  heir  or  as- 
signee are  real  covenants. 

Third,  a  covenant  is  said  to  run  with  the  land  when- 
ever the  liability  to  perform  it,  or  the  right  to  take 
advantage  of  it,  passes  to  the  assignee. 


84      BUSINESS  MAN'S  LEGAL  ADVISER 

Fourth,  to  create  a  covenant  running  with  the  land, 
there  must  be  a  privity  of  estate,  so  the  law  says, 
between  the  parties.  This  is  an  old  feudal  phrase, 
which  means  that  a  mutual  relationship  must  exist 
between  the  grantor  and  the  grantee  and  his  assignees 
to  carry  a  covenant  of  warranty  to  subsequent  gran- 
tees. Unless,  therefore,  there  is  such  a  mutuality  or 
succession  of  interest,  a  covenant  will  not  run  with 
the  land. 

(k)  There  is  a  growing  tendency  to  regard  covenants 
relating  to  land  or  its  use  as  running  therewith,  and 
they  are  frequently  enforced  against  subsequent 
grantees  who  have  notice,  even  though  there  is  no 
privity  of  estate.  Consequently,  a  covenant  con- 
cerning the  title  or  use  of  land  may  be  enforced  in 
equity  regardless  of  the  question  whether  the  covenant 
is  one  that  runs  with  the  land  itself.  By  this  rule 
covenants  are  sustained  and  enforced  against  assignees 
who  have  a  notice  stipulating  for  the  particular  mode 
of  improvement,  occupancy,  or  use  of  land.  Cov- 
enants relating  to  the  mode  of  building,  or  of  using 
water  rights,  or  air  and  the  like,  are  essentially  of  this 
nature,  because,  through  the  stipulation  contained  in 
the  deeds,  all  parties  have  notice  of  their  existence. 

(I)  With  these  general  principles  before  us  we  may 
pass  to  the  consideration  of  the  question,  what  par- 
ticular covenants  run  with  the  land.  The  books 
contain  a  multitude  of  answers,  but  they  are  at  hope- 
less variance.  Generally,  covenants  that  relate  to 
buildings  and  improvements  are  of  this  nature.  A 
covenant,  for  example,  to  erect  a  smelting  mill  or  to 


MODES  OF  ENTIRE  OWNERSHIP        85 

set  back  a  building  from  the  street,  or  to  build  a  new 
chimney,  and  the  like,  runs  with  the  land.  So  are 
covenants  not  to  build  on  adjoining  land,  or  to  open 
a  street  of  a  certain  width,  to  keep  up  a  dam,  flume, 
levee,  pier,  bulkhead,  gate,  and  the  like.  Also,  cov- 
enants creating  easements,  to  insure  building  and  to 
use  the  money  for  rebuilding  in  case  of  loss.  In  like 
manner  covenants  to  erect  and  maintain  fences,  to 
pay  mortgage  debts,  to  save  the  expense  of  building  a 
party-wall,  to  pay  rent,  to  make  repairs,  and  in  many 
cases,  covenants  concerning  the  use  of  the  property. 
Also,  covenants  to  pay  taxes  and  assessments,  and  to 
regulate  and  restrict  the  use  of  land.  Besides  these 
may  be  mentioned  covenants  to  supply  or  furnish 
water.  Of  late  years  the  courts  have  not  had  much 
difficulty  in  determining  that  such  covenants  are  real 
and  run  with  the  land. 

(m)  There  are  other  covenants,  concerning  which 
the  courts  have  had  the  greatest  difficulty  in  deter- 
mining their  character.  First,  the  most  important 
among  them  is  the  covenant  respecting  encumbrances. 
If  one  exists  at  all,  it  exists  at  the  time  of  delivering  the 
deed,  and  therefore  it  is  broken  immediately  as  soon 
as  the  deed  is  delivered.  Consequently,  many  courts 
have  held  that,  as  the  covenant  is  immediately  broken, 
it  comes  to  an  end  and  cannot  nm  with  the  land. 
This  view  is  strenuously  denied  by  other  courts,  and 
thus  they  are  hoplessly  divided. 

(«)  In  like  maimer  the  courts  are  hopelessly  divided 
over  the  important  covenant  relating  to  the  quiet 
enjoyment  of  land.    This  is  said  to  be,  if  broken  at 


86      BUSINESS  MAN'S  LEGAL  ADVISER 

all,  broken  on  the  delivery  of  the  deed,  and,  therefore, 
does  not  run  with  the  land.  Nevertheless,  other  courts 
of  equal  authority  maintain  the  opposite  rule. 

(o)  Lastly  may  be  mentioned  covenants  pertaining 
to  the  right  to  convey,  which  are  broken  immediately 
on  execution  of  the  deed,  if  at  all.  The  courts  are 
more  harmonious  in  declaring  these  to  be  merely 
personal,  and,  therefore,  not  running  with  the  land. 

{p)  When  such  an  action  has  been  brought  what 
damages  can  be  recovered?  If  the  grantor  acquires  a 
paramount  title  before  his  grantee  has  been  evicted  by 
the  adverse  holder,  the  grantee  can  recover  only 
nominal  damages,  for  his  title  is  rendered  complete 
by  the  operation  of  the  rule  of  estoppel.^  If  he  has 
been  evicted  before  the  grantor  has  acquired  a  perfect 
title,  he  is  entitled  to  recover  all  the  damages  he  has 
sustained. 

§  2.  Acquisition  OF  Land  BY  Descent 

1.  Meaning  of  heir. 

2.  When  title  comes  into  existence. 

3.  Heir  at  law  is  only  one  who  becomes  owner  with- 

out consent. 

4.  Degrees  of  relationship. 

5.  Rules  of  descent. 

6.  Ancestral  estates. 

7.  Posthumous  children. 

8.  Illegitimate  children. 

9.  Law  of  what  place  applies. 
»Sec.  7. 


MODES  OF  ENTIRE  OWNERSHIP        8J 

10.  Aliens. 

11.  The  land  may  be  taken  from  heir  to  pay  ancestor's 

debts. 

12.  Claims  or  incomplete  interests  pass  by  descent. 

13.  Deductions  for  advancements. 

1.  An  absolute,  or  lesser,  estate  or  interest  in  land  is 
acquired  by  the  land-owner's  death  without  disposing 
by  will  of  his  estate  (if  it  be  heritable) ;  for,  when  this 
happens,  the  law  disposes  of  his  land  to  his  heir  or  heirs. 
The  term  "  heir,"  as  thus  used,  is  always  a  legal  term, 
meaning  the  person  or  persons  who  are  entitled  to  the 
inheritance. 

2.  Though  the  title  comes  into  existence  by  the 
death  of  the  owner  or  ancestor,  by  popular  phrase 
persons  are  sometimes  called  heirs  while  the  ancestor 
is  living,  and  are  known  as  heirs  apparent  and  heirs 
presumptive.  By  an  heir  presumptive  is  meant  a 
person,  who,  should  the  ancestor  die,  would  be  his 
heir.  For  example,  in  England  a  daughter,  who  is  an 
only  child,  would  be  an  heir  presumptive;  afterward, 
if  the  ancestor  had  a  son,  this  presumption  would 
cease.  An  heir  apparent  is  one  who,  should  he  survive, 
is  certain  to  be  the  heir  of  an  ancestor. 

3.  The  heir  at  law  is  the  only  person  who  becomes 
the  owner  of  land  by  law  without  his  own  act  or  assent. 
On  him  the  law  casts  the  title,  without  regard  to  his 
desire,  nor  can  he  disclaim  it  if  he  would.  Of  course, 
he  can  part  with  the  title  afterward,  but  the  title  itself, 
by  operation  of  law,  vests  or  inheres  in  him.  He  is 
entitled  to  the  rent  of  lands  thus  coming  to  him  until 


S8      BUSINESS  MAN'S  LEGAL  ADVISER 

they  are  sold  for  the  payment  of  debts,  even  though  the 
ancestors  should  die  insolvent.  On  one  occasion  an 
heir  was  entitled  to  damages  from  building  a  railroad 
across  the  land  of  an  ancestor  after  his  death,  although 
the  land  was  subsequently  sold  for  the  payment  of  the 
ancestor's  debts.  In  some  states  statutes  provide  that 
the  executor  or  administrator  shall  receive  and  retain 
the  rents  and  profits  of  the  real  estate  until  the  settle- 
ment of  the  ancestor's  affairs,  or  imtil  they  will  not 
be  needed  for  the  payment  of  his  indebtedness. 

4.  Consanguinity,  or  kindred  by  blood  relationship, 
is  the  relation  of  persons  descended  from  the  same  stock 
or  a  common  ancestor.  He  is  called  the  root  or  trunk 
of  any  stock  from  which  the  lines  of  descent  are  traced. 
This  consanguinity  is  either  lineal  or  collateral.  It  is 
lineal  when  existing  between  persons  who  descend  in  a 
direct  line  one  from  the  other,  as  father,  grandfather, 
and  the  like,  and  also  when  ascending,  as  son,  grandson, 
and  the  like.  Descent  is  collateral  when  persons  are 
descended  from  a  common  stock,  but  not  one  from  the 
other.  Thus,  a  man  and  his  nephew  are  collaterally 
related,  as  each  may  trace  his  line  of  descent  to  the 
same  common  ancestor.  Were  an  ancestor  to  leave 
two  children,  and  each  of  them  two  children,  and  so  on 
through  fifteen  generations,  the  original  ancestor 
would  have,  of  collateral  kindred  in  the  fifteenth  degree, 
nearly  two  hundred  and  seventy  millions. 

By  the  canon  law,*  the  relationship  between  father 
and  son  is  the  first  degree;  between  brothers,  in  the 
second  degree;  between  imcle  and  nephew,  in  the  third 

I  67  canoD  law  is  meant  the  law  of  the  andeat  church. 


MODES  OF  ENTIRE  OWNERSHIP        89 

degree;  between  cousins,  in  the  fourth  degree,  and  so 
on.  By  the  common  law  the  degrees  are  somewhat 
different.  As  the  civil  or  canon  law  is  usually  followed 
in  tracing  descent,  nothing  need  be  said  concerning 
the  other. 

5.  In  tracing  the  rules  of  descent  the  American  law 
has  departed  widely  from  the  English,  The  old 
Roman  system  has  been  regarded  with  more  favour, 
though  even  from  this  there  have  been  several  note- 
worthy departures. 

One  of  these  pertains  to  lineal  or  direct  descendants, 
who,  if  standing  in  an  equal  degree  from  thsir  common 
ancestor,  share  equally.  By  the  common  law,  each 
lineal  branch  takes  the  portion  which  his  parent  would 
have  taken  had  he  been  living.  Thus,  suppose  X 
should  die,  leaving  seven  nephews;  one  of  them  is  a 
son  of  his  brother  A,  three  are  sons  of  brother  B,  and  the 
other  three  are  sons  of  brother  C.  By  the  Roman  law 
each  nephew  would  take  a  seventh  part  of  the  estate; 
by  the  common  law  the  nephew  who  is  the  son  of  the 
deceased  brother  A,  would  take  one-third  of  the 
estate;  the  sons  of  brother  B  would  take  another  third; 
and  the  sons  of  C  the  other  third.  In  some  of  the, 
states  the  Roman  rule  still  prevails.  By  the  English 
law  great  importance  is  laid  on  the  possession,  or  the 
right  of  possessing  lands,  with  respect  to  inheriting 
them.  By  the  American  law  no  distinction  is  made 
between  the  owner  and  the  possessor  of  lands.  Con- 
sequently, by  our  system  the  heirs  of  a  reversioner, 
or  remainder-man,  by  whom  is  meant  a  person  who 
comes  into  the  ownership  of  land  after  the  termination 


90      BUSINESS  MAN'S  LEGAL  ADVISER 

of  a  prior  estate,  can  take  the  same  as  absolutely  as 
if  their  ancestor  had  been  in  actual  possession.  A 
remainder-man,  or  reversioner,  therefore,  becomes  a 
proper  stock  or  root  of  descent;  in  other  words,  he  can 
devise  property  like  the  owner  of  an  entire  estate. 
Consequently,  when  he  dies  intestate,  his  estate  is 
distributed  among  his  heirs  in  the  same  manner  as  the 
estate  of  an  entire  owner  who  was  in  full  possession 
at  the  time  of  his  death. 

By  the  American  statutes  an  estate  of  inheritance 
generally  ascends  to  lineal  ancestors  when  there  are  no 
lineal  descendants,  the  law  preferring  the  former  to 
the  collateral  branches.  Thus,  a  maternal  grand- 
mother, with  her  big  spectacles,  is  preferred  by  the  law 
to  a  paternal  uncle,  when  a  person  dies  leaving  neither 
father,  mother,  brother,  nor  sister.* 

>  "Statutes  directing  the  inheritance  of  an  intestate,  in  default  of  any 
child  or  descendant,  to  go  to  the  father,  and  if  no  father,  to  the  mother,  and 
if  no  mother,  to  the  brothers  and  sister^  in  equal  shares,  and  to  the  descend- 
ants coUectively  of  deceased  brothers  or  sisters,  if  any,  the  share  the  deceased 
brother  or  sister  would  have  been  entitled  to  if  alive  at  the  time  of  the  intes- 
tate's death,  have  been  adopted  in  Arkansas,  Colorado,  New  York,  and  South 
Carolina.  In  default  of  descendants  the  father  takes  by  statute  in_  preference 
to  the  mother,  brothers,  or  sisters  of  the  intestate  in  CalSomia,  Florida,  Maine, 
Maryland,  Massachusetts,  Michigan,  Miimesota,  Nebraska,  Nevada,  New 
Hampshire,  Oregon,  Rhode  Island,  Tennessee,  Vermont,  Virginia,  and  West 
Virginia.  In  the  states  of  Iowa,  Kansas,  Kentucky,  Pennsylvania,  Texas, 
and  Wisconsin  the  father  takes  equally  with  the  mother,  and  if  she  be  dead, 
her  share  also,  in  preference  to  brothers  and  sisters.  In  Georgia,  Illinois, 
Indiana,  Louisiana,  and  Missouri  the  father,  mother,  brothers  and  sisters  take 
equally;  while  in  Alabama,  Delaware,  Mississippi,  New  Jersey,  North  Caro- 
lina, and  Ohio  the  father  is  preferred  to  the  mother,  but  postponed  to 
the  brothers  and  sisters."     3  Kerr  on  Real  Property,  §  2264,  p.  2283. 

"  According  to  the  statutory  provisions  of  some  of  the  states,  after  father 
and  mother,  brothers  and  sisters  are  the  next  degree  in  the  order  of  succession. 
These  are  not  in  the  descending  or  ascending  line  of  propinquity,  but  collat- 
eral to  the  estate.  The  brothers  and  sisters  being  members  of  the  intestate's 
immediate  family,  are  more  nearly  interested  in  the  estate  than  any  other 
relative,  aside  from  the  father  and  mother,  and  for  this  reason  the  law  casts 
upon  them  the  descent  of  the  property,  subject  to  the  right  of  the  surviving 
husband  or  wife,  and  frequently  in  connection  with  the  father  and  mother. 
Brothers  and  sisters  thus  take  in  Alabama,  Connecticut,  Delaware,  Missis- 
sippi, New  Jersey,  North  Carolina,  Ohio,  and  Pennsylvania.  Jn  Georgi^ 
Illinois,  Indiana,  Louisiana,  and  Missouri  brothers  and  sisters  inherit  with 


MODES  OF  ENTIRE  OWNERSHIP        91 

There  is  a  great  difference  in  the  American  statutes 
with  respect  to  inheriting  by  persons  of  the  whole-  and 
the  half-blood.  In  some  states  no  distinction  is  made 
between  them;  in  the  larger  number  the  right  of  in- 
heriting by  the  half-bloods  is  postponed  another  period, 
or  to  a  more  remote  degree.  In  no  state  are  they 
fully  excluded.' 

6.  Another  difference  may  be  noted  with  respect  to 
inheritances  which  come  to  an  ancestor  by  descent. 
These  are  sometimes  called  ancestral  estates,  to  dis- 
tinguish them  from  estates  acquired  by  purchase.  In 
some  states  ancestral  estates  descend  to  the  kindred 
who  are  of  the  blood  of  the  ancestor  whence  they  come, 
whether  in  the  paternal  or  maternal  line.  This  rule 
applies  imtil  the  relations  in  the  particular  line  have 
all  been  exhausted. 

7.  Posthumous  children  inherit  in  the  same  manner 
as  children  born  in  the  lifetime  of  their  father.  This 
principle  is  universally  adopted. 

8.  Illegitimate  children  can  neither  be  heirs  of 
anyone  nor  ancestors  of  anyone  except  their  own  issue. 

their  parents,  excluding  more  remote  kin;  while  they  are  postponed  to  the 
father,  and  with  the  mother  exclude  remote  kindred  in  Ilorida,  Kentucky, 
Maine,  Maryland,  Massachusetts,  Michigan,  Minnesota,  Nebraska,  Nevada, 
New  Hampshire,  Oregon,  Rhode  Island,  South  Carolina,  Vermont,  Virginia, 
and  West  Virginia.  In  the  states  of  Arkansas,  Colorado,  lov.a,  Kansas,  New 
York,  Pennsylvania,  Tennessee,  Texas,  and  Wisconsin  brothers  and  sisters 
and  their  descendants  are  postponed  to  father  and  mother,  but  ta^e  to  the 
exclusion  of  remote  kin."    Ibid,  §  2266. 

•  "In  some  states  no  essential  distinction  is  made,  the  statute  declaring 
collaterals  of  the  half-blood  to  be  entitled  equally  with  those  of  the  full-blood 
in  the  same  degree,  as  in  Illinois,  Indiana,  Maine,  Massachusetts,  New  York, 
South  Carolina,  Rhode  Island,  Tennessee,  Oregon,  and  Vermont.  In  (other 
states  the  preference  is  given  to  collaterals  of  the  whole  blood,  as  in  Connecti- 
cut.jDelaware,  Georgia,  Maryland,  Mississippi,  New  Jersey,  Ohio,  Pennyl- 
vania,  and  South  Carolina.  In  still  other  of  the  states,  as  in  Colorado,  Florida, 
Kentucky,  Missouri,  Texas,  Virginia  and  West  Virginia  collaterals  of  the  full- 
blood  take  full  shares,  and  of  the  half-blood  half  shares;  but  in  none  of  the 
states  of  the  Union  are  the  half-blood  wholly  excluded."    Ibid,  §  3267. 


92      BUSINESS  MAN'S  LEGAL  ADVISER 

While  this  is  the  rule  of  the  common  law,  by  statute, 
in  many  states,  illegitimate  children  can  inherit  from 
their  mother.' 

9.  The  law  applying  to  the  descent  of  land  is  that  of 
the  state  where  it  is  situated,  and  not  the  law  of  the 
domicile  or  home  of  the  intestate.  This  principle, 
also,  is  of  universal  application. 

10.  The  land  of  an  alien  who  is  authorized  to  hold 
real  estate  will  descend  to  his  lawful  heirs,  and  not 
escheat  or  pass  to  the  state.  On  one  occasion  a  person 
who  was  authorized  by  special  statute  to  hold  land 
died,  leaving  an  alien  father  and  several  alien  brothers, 
and  one  brother  who  was  authorized  to  hold  land. 
The  estate  descended  to  him. 

11.  The  land  of  every  heir  may  be  taken  away  from 
him  for  the  purpose  of  paying  the  debts  of  the  deceased 
owner.  The  law  has  wisely  fixed  d  period  of  time 
within  which  creditors  must  act  if  they  wish  to  appro- 
priate the  lands,  or  rather  their  value,  of  a  person  who 
has  died,  for  paying  their  debts.  Through  neglect 
to  act  within  this  period,  their  rights  to  the  land  are 
forever  cut  ofif. 

12.  Claims  or  incomplete  interests  in  land  pass  by 
descent.  Thus,  in  our  country,  public  lands  are  sur- 
veyed and  afterward  taken  up  by  individuals  on  very 
liberal  terms.  The  paper  or  instrument  given  to 
owners  is  called  a  patent.  Once  an  individual  took 
steps  for  getting  a  patent  of  a  quarter  section,  but  died 
before  the  grant  was  completed.    It  was  surveyed, 

>  In  New  York  they  axe  excluded  (from  inheriting  if  there  be  legitimate 
issue,  but  this  statutory  exception  perhaps  exists  in  no  other  state.  See  aote 
3,  Tiedeman's  Real  Property,  p.  63a. 


MODES  OF  ENTIRE  OWNERSHIP        93 

but  not  actually  patented  to,  or  secured  by,  the  in- 
testate during  his  life.  The  patent  was  issued  to  his 
heirs,  and  the  court  held  that  they  took  the  land  by 
descent,  and  not  as  purchasers.  In  another  case 
lands  were  sold  for  taxes,  but  the  purchaser  died  before 
the  delivery  of  a  deed;  nevertheless  they  descended 
to  his  heirs.  In  another  case  the  rent  of  land  leased 
indefinitely  went  to  the  heirs  of  the  landlord  after  his 
death,  as  a  part  of  their  inheritance. 

13.  In  distributing  estates  among  heirs  deductions 
are  sometimes  made  for  advancements.  These  con- 
sist of  sums  which  the  ancestor  has  advanced  to  an  heir, 
and  charged  against  him  with  the  expectation  that  they 
would  be  deducted  from  his  portion  of  the  estate. 
It  is  not  an  imcommon  thing  for  a  father  to  charge  up 
the  sums  given  to  a  spendthrift  child,  expecting  that, 
on  the  settlement  and  division  of  the  paternal  estate, 
they  will  be  deducted  from  that  child's  share.  To 
justify  their  deduction  this  intention  of  the  intestate 
must  clearly  appear. 

§  3.  Acquisition  of  Land  by   Will 

1.  Who  can  make  a  will. 

2.  Minor  can  make  a  will. 

3.  Every  interest  in  land  may  be  devised. 

4.  Meaning  of  devise. 

5.  Statutory  regulations  about  wills. 

6.  Will  must  be  by  law  of  the  place  where  is  the  land. 

7.  Must  be  in  writing. 

8.  Printed  wills. 

9.  Must  be  signed. 


94       BUSINESS  MAN'S  LEGAL  ADVISER 

10.  When  testator  can  make  his  mark. 

11.  Witnesses. 

12.  They  must  sign  in  testator's  presence. 

13.  A  witness  cuts  himself  off  from  receiving  anything. 

14.  When  a  will  written  by  the  'testator  requires  no 

witnesses. 

15.  Credibility  and  competency  of  witnesses. 

16.  An  executor  can  be  a  witness. 

17.  Competency  of  testator. 

18.  He  must  publish  his  will. 

19.  Who  may  be  devisee  or  legatee.     Corporation. 

20.  Description  of  devise. 

21.  Ambiguities. 

22.  From  what  time  will  take  effect. 

23.  Lapsed  legacies. 

24.  Revocation: 

a. —  Some  specific  act  is  needful, 

b. —  Destruction  of  it, 

c. —  Marriage  by  a  woman, 

d. —  Accidental  omission  of  legatee, 

e. —  Subsequent  birth  of  child, 

/. —  Subsequent  disposition  of  estate, 

g. —  The  making  of  a  later  will, 

h. —  Revocation  of  joint  wills. 

25.  Construction  of  will;  intention. 

26.  Where  the  interest  of  the  devisee  rests  in  him. 

27.  Title  by  descent  and  devise  compared. 

28.  Estate  undevised  rests  in  heir. 

I.  The  law  relating  to  wills  is  partly  statutory  and 
partly  the  creation  of  the  courts.    By  the  modem  law 


MODES  OF  ENTIRE  OWNERSHIP        95 

persons  have  more  authority  or  right  to  make  wills  than 
formeriy.  There  was  a  time,  not  so  very  long  ago, 
when  a  married  woman  could  not  make  a  will;  now,  in 
every  state,  she  possesses  this  authority  as  fully  as  her 
unmarried  sisters.  By  the  common  law  males  fourteen, 
and  females  twelve,  years  of  age  can  dispose  of  their 
personal  property. 

2.  In  many  states  a  minor,  though  quite  incapable  of 
making  an  agreement,  can  make  a  will  disposing  of  his 
property.  A  clear  distinction  exists  between  the  two, 
for  a  will  is  a  gift  of  property  to  take  effect  after  the 
testator's  death,  and  not  an  agreement  or  contract; 
therefore,  a  person  who  may  be  incapable  by  law  to 
make  a  contract  can  make  a  gift  which  the  law  will 
recognise  and  enforce. 

3.  Every  interest  in  land  except  a  mere  possibility 
may  be  devised.  It  includes,  therefore,  easements  and 
all  kinds  of  estates  or  interests  in  them,  as  well  as  every 
kind  of  personal  property. 

-  4.  The  term  "devise"  relates  properly  to  the  giving 
'or  parting  with  real  estate;  it  will  serve  our  purposes 
better  to  consider  the  whole  subject  of  transferring 
both  real  and  personal  property  by  will  in  this  section. 

5.  By  a  will  the  testator  undertakes  to  dispose  of  his 
property  after  his  death.  All  of  the  states  in  the  Union 
have  prescribed  laws  regulating  the  mode  of  making 
wills.  These  statutes  provide,  among  other  things 
how  wills  must  be  witnessed.  Most  of  the  states  re- 
quire three  witnesses.  Another  general  statement 
may  be  made:  a  witness  usually  is  cut  off  from  taking 
anything  under  a  will.    Many  a  legatee  or  devisee 


96       BUSINESS  MAN'S  LEGAL  ADVISER 

has  lost  the  bequest  given  to  him  through  ignorance 
of  this  rule. 

6.  The  law  governing  real  estate  given  by  will  is  that 
of  the  state  where  the  land  is  situated.  A  different 
rule  applies  to  personal  property.  This  is  governed  by 
the  law  of  the  domicile  or  home  of  the  testator.  These 
two  rules  cover  all  the  property  which  can  be  be- 
queathed by  a  testator. 

7.  Most  of  the  states  require  that  a  will  should  be  in 
writing.  No  particular  manner  of  composition  is 
prescribed.  A  testator  may  write  his  will;  in  many 
cases  it  is  written  by  himself.  Indeed,  once  a  husband 
and  wife,  both  possessors  of  a  large  amount  of  property, 
amused  themselves  for  many  years  by  indulging  in  this 
kind  of  literary  work.  As  some  of  them  were  not 
dated,  after  their  death  the  question  proved  to  be 
very  difficult  to  decide  which  was  the  last,  and, 
therefore  the  true  will  or  final  disposition  of  their 
property. 

8.  Printing,  engraving  and  lithographing  are  held 
equivalent  to  writing.  The  instrument  may  be  written 
with  a  pen  or  pencil;  or  it  may  be  partly  written  and 
partly  printed.  Indeed,  the  courts  go  as  far  as  pos- 
sible toward  sustaining  any  kind  of  a  writing  which  in 
other  respects  is  valid  and  proper. 

9.  A  will  must  be  signed,  but  a  seal  usually  is  not 
necessary,*  except  perhaps  in  the  states  of  Vermont  and 
New  Hampshire.  The  statute  of  frauds  requires  a  will 
to  be  in  writing  and  signed  or  subscribed  by  the  tes- 
tator.    He  need  not  subscribe  his  name  at  the  end; 

*It  is  almost  everywhere  appended. 


MODES  OF  ENTIRE  OWNERSHIP        97 

if  this  is  done  in  any  other  place  it  will  be  effective; 
this  rule,  though,  does  not  prevail  eveiywhere. 

10.  A  testator  who  is  unable  to  write  may  make  his; 
mark,  and  this  is  a  sufficient  signing  to  comply  with  the 
law,  whether  common  or  statutory.  Again,  some  one 
may  guide  the  hand  of  a  testator  who  is  too  weak  from 
disease  to  write  without  assistance,  and  who  requests 
this  to  be  done.  So,  too,  it  is  declared,  if  a  testator 
through  feebleness  is  unable  to  handle  a  pen,  and 
requests  another  to  sign  his  name  for  him,  the  signa- 
ture will  be  a  good  signing  without  any  mark  whatever 
by  the  testator.  Of  course,  when  this  is  done,  it 
should  be  accompanied  by  ample  proof  of  the  mode  of 
signing,  in  order  to  escape  all  attacks  that  may  be 
made  on  this  unusual  manner  of  execution. 

11.  The  witnesses  to  a  will  are  required  to  do  more 
than  the  witnesses  of  a  deed.  In  the  latter  case  they 
are  simply  required  to  witness  its  execution;  in  witness- 
ing a  will  they  are  also  judges  of  the  testator's  com- 
petency; consequently,  whenever  there  is  a  legal 
dispute  concerning  the  testator's  capacity,  they  serve 
as  expert  witnesses,  and  are  required  to  give  their 
opinion  of  his  mental  capacity.  The  office  of  witness 
to  a  will  is,  therefore,  important,  and,  as  a  person  may 
be  thus  required  to  testify,  he  should  always  be  selected 
with  the  view  of  his  performing  possibly  this  service. 

12.  The  testator  need  not  sign  in  the  presence  of  the 
witnesses,  but  they  must  sign  in  his  presence.  It  is 
better  for  all  the  witnesses,  as  well  as  the  testator,  to 
be  present  at  the  time  of  performing  this  important 
act. 


98      BUSINESS  MAN'S  LEGAL  ADVISER 

Many  nice  questions  have  arisen  on  this  seemingly 
simple  subject.  Attestation  in  a  different  room,  it  is 
said,  will  be  good,  if  the  testator  could  see  the  witnesses 
when  they  were  writing.  Again,  the  witnesses  may 
sign  at  different  times  and  not  in  each  other's  presence, 
provided  they  all  sign  in  the  presence  of  the  testator. 

Generally,  a  will  contains  an  attestation  clause,  de- 
claring that  the  attesting  was  done  in  compliance  with 
the  statute  in  every  particular.  The  witnesses  sign 
below  the  attestation  clause  at  the  end  of  the  will;  in 
some  states  this  is  required  by  statute.  By  common 
law  the  witnesses  are  not  required  to  sign  in  any 
particular  place. 

f;  13.  Though  a  devisee  or  legatee,  by  acting  as  a 
witness,  cuts  himself  off  from  his  share  in  the  estate, 
the  will  itself  is  not  thereby  affected.  Again,  should 
there  be  witnesses  to  satisfy  the  statute,  even  though 
the  name  of  such  a  devisee  or  legatee  were  not  counted 
as  a  witness,  his  action  in  witnessing  it  would  not 
affect  its  validity. 

14.  A  will  that  is  written  by  the  testator  himself  is 
called  a  holograph,  and,  by  the  laws  of  several  states, 
no  witnesses  thereto  are  required.  It  is  said  by  some 
authorities  that  such  a  will  is  suspicious,  especially 
of  a  testator  feeble-minded  and  notoriously  under  the 
influence  of  the  devisee  or  legatee,  who  thereby  ac- 
quires a  large  share  of  the  property. 

15.  Some  of  the  statutes  require  a  witness  to  be 
credible,  others  to  be  competent.  The  two  words  are 
generally  used  synonymously.  The  law  is  very  strict 
concerning   the  ^mode,  ^of    signing    and    witnessing, 


MODES  OF  ENTIRE  OWNERSHIP        99 

and  it  is  impossible  to  be  too  precise  in  all  these 
particulars. 

The  three  principal  causes  of  incompetency  in 
witnesses  are  mental  imbecility,  arising  either  from 
insanity  or  youthfulness;  the  commission  of  crime; 
and  interest  in  the  property  willed.  The  most  common 
cause  of  incompetency  is  that  of  interest.  In  most 
states  a  statute  provides  that  a  will  is  good  even  though 
the  devise  or  legacy  be  void  by  reason  of  the  witness- 
ing of  the  instrument  by  the  devisee  or  legatee.  In 
some  states  there  is  another  statute  providing  that, 
when  a  devisee  has  received  no  more  by  the  will  than 
he  would  have  received  as  heir  had  the  testator  died 
intestate,  he  is  a  competent  witness.  The  reason  for 
this  statute  is  apparent,  for,  even  if  there  were  no  will, 
the  person  subscribing  as  witness  would  receive  as 
much.  In  some  states  a  witness  who  is  incompetent 
by  reason  of  interest  may  become  competent  by 
making  an  assignment  or  release  of  his  interest. 

It  may  be  added  that  competency  affects  the  wife  or 
husband  of  the  devisee  or  legatee.  Thus,  should  a  gift 
be  made  to  one,  and  the  other  act  as  witness,  the  gift 
would  be  void.    This  rule  does  not  prevail  everywhere. 

16.  An  executor  or  trustee  can  act  as  a  witness. 

17.  The  question  of  the  competency  of  testators  to 
dispose  of  their  property  may  next  be  considered. 
Two  classes  are  incompetent:  minors  and  persons  of 
unsound  mind.  Formerly,  women  were  incompetent, 
but  several  states  have  removed  their  incompetency 
by  statute. 

The  sanity  needful  to  comply  with  the  law  cannot  be 


loo     BUSINESS  MAN'S  LEGAL  ADVISER 

easily  described.  The  inquiry  is,  when  the  testator's 
sanity  is  questioned,  had  he,  at  the  time  of  executing 
his  will,  suflScient  mental  capacity  to  make  it;  not, 
whether  he  was  sane  or  insane.  Says  Chief  Justice 
Redfield:  "He  must  have  undoubtedly  sufficient  active 
memory  to  collect  in  his  mind,  without  prompting, 
parts  or  elements  of  the  business  to  be  transacted,  and 
to  hold  them  in  his  mind  a  sufficient  length  of  time  to 
perceive  their  more  obvious  relations  to  each  other  and 
to  form  some  rational  judgment  in  relation  to  these." 
Courts  have  often  declared  it  was  not  essential  that 
the  testator  should  be  capable  of  managing  business 
generally.  His  capacity  is  sufficient  to  make  his  will, 
provided  he  understands  what  he  is  doing.  Of  course, 
the  question  of  capacity  relates  to  the  time  of  thus 
acting,  and  not  to  his  condition  either  before  or  after- 
ward. 

A  person  who  is  not  saiie  may  make  a  will  that  is 
just  as  valid  as  any  other,  provided  his  insanity  is  not 
of  a  kind  to  affect  his  conduct  as  a  testator.  Again, 
an  insane  person  may  have  lucid  intervals  during  which 
he  has  a  sufficient  capacity  to  make  a  will.  On  one 
occasion  a  furious  lunatic  wrote  a  will,  so  proper  and 
consistent  in  all  its  parts,  that  the  court  had  no  diffi- 
culty in  sustaining  it.  In  another  case,  that  of  an 
eminent  lawyer,  his  will  was  set  aside  because,  under 
the  influence  of  a  delusion  concerning  his  brother,  he 
disinherited  him.  The  question,  therefore,  is  one  of 
fact  to  be  decided  by  the  evidence  in  each  particular 
case. 

Lastly,  a  witness  who  is  competent  at  the  time  of 


MODES  OF  ENTIRE  OWNERSHIP      loi 

attesting  a  will  does  not  become  incompetent  from  any 
subsequent  cause.  The  law  simply  requires  com- 
petency at  the  time  of  his  attestation. 

i8.  A  testator  must  publish  his  will;  in  other  words, 
must  declare  to  the  witnesses  that  it  is  his  last  will  and 
testament;  and  it  is  said  that,  unless  he  makes  a  decla- 
ration to  this  effect,  the  will  is  void.  At  the  time  of 
doing  this  the  will  must  be  completed. 

19.  Any  person  may  be  a  devisee  or  legatee,  includ- 
ing married  women,  minors,  and  corporations  that  are 
not  prohibited  by  law  from  receiving  a  devise  or 
legacy.  A  great  question  has  long  agitated  the  courts 
concerning  a  devise  to  a  corporation  not  in  existence. 
By  the  English  law  this  can  be  done.  In  America 
perhaps  no  question  has  proved  more  difficult  for  the 
courts  to  decide.  In  one  of  the  most  recent  cases  it 
was  decided  that  a  testator  could  devise  property 
to  a  trustee  and  entrust  him  with  power  to  select  or 
designate  the  object  or  objects  of  the  testator's  bounty. 
If,  therefore,  a  testator  creates  a  trust  for  a  chari- 
table purpose,  defining  his  intention,  and  investing 
or  creating  the  trustee  with  discretionary  power  over 
the  application  of  his  bounty  to  charitable  purposes, 
the  bequest  will  be  sustained.  If,  in  executing  the 
trust,  the  trustee  selects  the  beneficiaries  and  devises  a 
scheme  or  plan  by  applying  the  funds  given  in  accord- 
ance with  the  testator's  intention,  the  courts  will 
sustain  the  instrument  and  uphold  the  execution  of 
the  trust.  One  or  more  trustees,  however,  must  be 
selected.  If  neither  a  charity  be  named  nor  a  trustee 
for  executing  it,  then  it  would  fail. 


102     BUSINESS  MAN'S  LEGAL  ADVISER 

New  York  is  the  leading  state  denying  this  doctrine; 
likewise  Virginia  and  Maryland,  though  less  rigidly. 
In  the  former  state  the  rule  prevailing  elsewhere  is  set 
aside  by  statute,  destroying  all  trusts  of  this  character. 
In  a  recent  case  the  highest  court  in  New  York  thus 
stated  the  law:  "If  there  is  a  single  postulate  of  the 
common  law  established  by  an  unbroken  line  of  de- 
cision, it  is  that  a  trust  without  a  certain  beneficiary 
who  can  claim  its  enforcement  is  void.  Nor  is  any 
distinction  made  between  trusts  generally  and  a  trust 
for  charitable  purposes." 

20.  No  formality  is  required  in  order  to  describe  the 
subject-matter  of  a  devise.  It  must  be  described  with 
suflScient  clearness  to  identify  it;  the  law  requires 
nothing  more. 

21.  Sometimes  there  are  ambiguities  in  a  will.  The 
law  recognises  two  kinds  of  ambiguities  —  patent  and 
latent.  When  a  latent  ambiguity  exists,  parol  evi- 
dence may  be  used  to  explain  the  intention  of  the 
testator.  The  use  of  parol  evidence  is  limited  to  these 
cases. 

22.  A  will  takes  effect  from  the  death  of  the  testator, 
and  the  validity  of  all  gifts  relate  to  that  time.  For 
example,  a  devise  to  one  who  died  before  the  testator 
lapses  or  is  of  no  effect.  This  principle  of  law  has  been 
corrected  by  statute,  perhaps,  in  all  the  states.  This 
provides,  in  a  general  way,  that  a  son  or  other  relative 
of  the  devisee  shall  take  his  place;  in  other  words,  the 
lineal  heirs  of  the  devisee  take  the  portion  coming  to  him 
by  will.  The  statutes  vary  in  detail;  some  confining 
the  provision  to  the  lineal  heirs  of  a  deceased  son  or 


MODES  OF  ENTIRE  OWNERSHIP      103 

grandson,  others  extending  the  benefit  to  the  general 
heirs  of  any  relative  who  is  named  as  a  devisee,  while 
others  go  still  further  and  declare  that  the  heirs  of  all 
devisees  are  capable  of  taking  in  their  ancestor's  place, 
thus  avoiding  altogether  the  doctrine  of  lapses  in  the 
event  of  the  death  of  the  devisee. 

23.  It  is  also  a  general  rule,  unless  there  be  statutes 
to  the  contrary,  that  lapsed  legacies  and  devises  vest 
in  the  heir  at  law. 

A  devise  to  two  or  more  joint  tenants  will  not  lapse 
on  the  death  of  one,  not  even  his  share,  but  the  sur- 
vivors take  the  entire  estate. 

A  different  rule  applies  to  the  devise  of  tenants  in 
common.  If  one  dies  his  portion  lapses,  and  the  others 
take  their  respective  portions. 

Under  a  devise  to  a  class,  the  individuals  of  which 
change  —  for  example,  a  devise  "  to  my  children "  — 
those  who  survive  the  testator  take  the  entire  devise, 
and,  in  such  a  case,  there  can  be  no  lapse  unless  all  the 
persons  included  in  the  class  have  died  before  the  tes- 
tator. 

24.  (a)  As  a  will  is  not  effective  until  the  testator's 
death,  he  can  revoke  it  at  his  pleasure.  To  do  this,  a 
specific  act  of  some  kind  is  required.  A  revocation 
may  be  express,  or  implied  when  the  testator  does 
some  act  clearly  inconsistent  with  the  existence  of  the 
will.  Thus,  should  a  testator  sell  the  land  devised 
to  A,  this  would  operate  as  a  revocation  of  the  devise, 
and,  if  this  land  composed  the  entire  estate,  the  sale 
would  operate  as  a  revocation  of  the  will. 

(6)  A  very  common  way  of  revoking  a  will  is  by 


104     BUSINESS  MAN'S  LEGAL  ADVISER 

destroying  it.  If  it  is  burnt  or  ceases  to  be,  the  revo- 
cation is  complete.  Not  infrequently  the  action  of  a 
testator  in  revoking  his  will  is  not  so  clear  or  effective 
as  it  might  be.  It  is  sometimes  said  that  as  much  ca- 
pacity is  required  to  revoke  a  will  as  to  make  one. 
At  all  events,  a  revocation  does  not  become  effective 
without  clear  action  on  the  part  of  the  testator  in- 
dicating his  intention  to  annul  the  instrument. 

In  one  of  the  cases  a  testator  had  endorsed  in  his  own 
handwriting  "canceled"  on  the  will,  without  signing  it. 
This  was  held  to  be  a  revocation.  In  another  case  a 
testator  had  written  against  one  of  the  bequests  of  the 
will  "obsolete ";  this  was  held  not  to  work  a  revocation. 
It  was  simply  a  revocation  of  that  bequest,  not  a 
destruction  of  the  entire  will. 

In  an  Ohio  case  a  testator  was  blind  and  called  for  his 
will,  which  was  handed  to  him.  After  feeling  of  the 
seal,  he  handed  it  to  another  and  told  him  to  put  it  in 
therfire.  Instead  of  doing  this  he  put  the  will  in  his 
pocket  and  burned  another  piece  of  paper,  telling  the 
testator  he  had  destroyed  it.  After  the  testator's 
death  the  will  was  produced  and  allowed,  the  courts 
declaring  that  he  had  done  none  of  the  acts  which  by 
statute  were  needful  to  revoke  a  will.  Was  not  this 
case  wrongly  decided?  Was  not  a  fraud  practised 
on  the  testator  which  the  court  ought  to  have  regarded? 

(c)  What  is  the  effect  to  a  woman  of  marrying  after 
making  her  will?  Generally,  by  statute,  of  revoking  it, 
especially  after  the  birth  of  children. 

{d)  Sometimes,  a  testator,  by  accident  or  intention, 
omits  the  name  of  a  child  or  grandchild  in  his  will,  and 


MODES  OF  ENTIRE  OWNERSHIP      105 

then  questions  have  arisen  concerning  his  rights.  The 
law  regards  the  omission  as  accidental,  and  the  omitted 
person  may  share  the  estate  of  the  testator  the  same  as 
if  he  had  died  intestate.  This  rule  applies  to  the 
grandchildren  as  well  as  to  children;  also  to  children 
born  after  making  of  the  will.  Of  course,'a  testator  may 
intentionally  omit  a  gift  to  a  child  or  other  relation  and, 
when  this  intention  clearly  appears,  it  will  be  regarded. 

(e)  In  many  of  the  states  the  birth  of  a  child  after 
the  making  of  a  will  operates  as  a  revocation,  the  law 
regarding  the  non-destruction  or  non-revocation  by 
the  testator  as  an  act  of  forgetfulness. 

(/")  The  disposal  by  a  testator  during  his  lifetime  of 
land,  devised  to  a  person,  of  course,  revoked  the  devise. 
This  also  applies  to  cases  of  sale  by  a  testator  who  has 
not  yet  made  a  conveyance. 

(g)  One  of  the  most  frequent  ways  of  revoking  a  will 
is  to  make  a  subsequent  will  or  codicil.  The  rule  is 
universal  that  the  last  will  speaks  the  mind  of  the  tes- 
tator. As  a  codicil  is  a  supplemental  will,  it  revokes  the 
will  itself  only  so  far  as  the  two  may  be  inconsistent; 
but  an  entire  will  made  at  a  later  date  operates  to 
destroy  the  other.  But  a  prior  will  that  has  been 
cancelled  or  revoked  in  an  express  manner  cannot  be 
revived  without  a  republication  in  a  manner  as  formal 
as  the  original  will.  Yet  it  has  been  declared  that  the 
execution  of  a  codicil  which  contains  an  express  ref- 
erence to  a  prior  will  is  a  sufficient  republication  to 
restore  it  to  life. 

(h)  Sometimes  joint  or  mutual  wills  are  made;  when 
they  are  they  can  be  revoked  by  either  testator  until 


io6     BUSINESS  MAN'S  LEGAL  ADVISER 

one  or  the  other  dies;  after  this  event  revocation  by 
the  survivor  is  impossible.  The  death  of  one  of  the 
testators  is  such  a  part  performance  of  the  agreement 
between  them  as  to  prevent  the  revocation  by  the  other. 

25.  A  cardinal  rule  in  construing  wills  is  intention. 
This  the  courts  try  to  ascertain  and  regard  imless  it  is 
contrary  to  positive  law. 

The  courts  have  a  stronger  regard  for  the  testator's 
intention  in  construing  a  will  than  a  grantor's  inten- 
tion in  construing  a  deed.  Such  is  the  rule  of  law, 
though  with  the  progress  of  jurisprudence  the  intention 
of  a  grantor  in  a  deed  is  regarded  more  scrupulously 
than  it  was  a  century  ago.  In  other  words,  the  spirit 
of  justice  more  and  more  informs  the  law;  rigid  and 
technical  rules  meet  with  less  and  less  favour. 

Though  the  books  contain  thousands  of  cases  per- 
taining to  the  construction  of  wiUs,  no  good  purpose 
would  be  served,  did  space  exist,  by  reproducing  them. 
The  principal  rules  of  construction  adopted  by  the 
courts  are  important,  and  these  will  now  be  given. 

If  an  estate  is  devised  to  A  for  life,  and  the  remainder 
after  his  death  is  to  go  to  B,  and  A  dies  in  the  testator's 
lifetime,  the  estate  goes  directly  to  B  on  the  death  oi 
the  testator. 

If  the  devise  is  to  a  wife  for  life  in  lieu  of  dower, 
and  the  estate  after  her  death  is  to  go  to  her  daughter 
and  the  wife  declines  to  accept  the  devise,  in  like 
manner  the  daughter  takes  the  estate  at  the  death  of 
the  testator. 

A  devise  of  the  rents  and  profits  of  land  or  the  in- 
come is  equivalent  to  the  devise  of  the  land  itself,  and 


MODES  OF  ENTIRE  OWNERSHIP      107 

is  for  life,  or  for  all  time,  according  to  the  words  used 
in  the  devise. 

A  testator  may  create  a  charge  on  land  in  favour 
of  a  third  person,  and  whoever  takes  the  estate  be- 
comes chargeable  therefor;  in  other  language,  takes 
the  estate  charged  with  the  legacy.  Whether  he  does, 
or  does  not,  turns  on  the  inquiry,  whether  the  charge 
is  a  personal  one  on  the  devisee,  or  is  on  the  land  de- 
vised. In  the  former  case  it  is  not  charged  on  the 
land;  to  create  such  a  charge  it  must  be  clearly  declared 
to  be  one. 

f  26.  The  interest  of  a  devisee  vests  immediately  on 
the  testator's  death,  and,  after  proving  the  will,  relates 
back  to  that  time.  If,  therefore,  it  be  in  terms  a 
present  devise,  and  the  devisee  is  not  in  existence  at  the 
time  of  the  testator's  death,  the  devise  is  void. 

27.  If  the  title  by  will  be  the  same  in  quantity  and 
quality  as  the  heir  would  take  by  descent,  the  law  re- 
gards him  as  an  owner  by  the  latter  manner.  This  rule  of 
construction  rests  on  the  legal  principle  that  a  title  by 
descent  is  of  greater  worth  than  a  title  by  devise  or  will. 

28.  Any  estate  that  a  person  leaves  undevised  vests 
at  once  in  his  heir.  Yet  it  may  be  taken  from  him 
when  needed  for  the  payment  of  the  testator's  debts. 
In  contesting  the  title  of  an  heir,  intestacy  is  always 
presumed  until  the  contrary  is  proved. 

§  4.   AcpuisiTioN    OF   Land   by   Occupancy  and 
Prescription 

1.  Law  pre-supposes  a  grant. 

2.  Why  law  favours  this  mode. 


'io8     BUSINESS  MAN'S  LEGAL  ADVISER 

3.  Personal  occupation  is  not  essential. 

4.  "Short  Limitations." 

5.  The  adverse  possession  must  be  continuous. 

6.  Title  to  flats  may  be  thus  acquired. 

7.  What  acts  are  effective. 

8.  Effect  of  mistaken  occupation. 

9.  Can  tenant  acquire  a  title  against  his  landlord? 

10.  Adverse  claimant  may  abandon  possession. 

11.  Acquisition  of  rights  in  a  party-wall. 

12.  In  a  non-navigable  stream. 

13.  In  a  public  square  or  highway. 

1.  Another  mode  of  acquiring  land  is  by  prescription 
or  adverse  use.  A  favourite  theory  has  been  often  re- 
peated, that  a  grant  was  once  made  and  that  the  deed 
of  conveyance  is  lost.'  This  is  one  of  the  numerous 
fictions  of  the  law,  which  play  a  nobler  part  than  most 
of  the  fictions  in  ordinary  literature. 

2.  One  reason  why  the  law  favours  this  mode  of 
acquisition  is  to  quiet  the  title,  so  nms  the  phrase.  An 
individual  who  has  been  in  possession  of  a  piece  of 
land,  openly  and  notoriously  for  the  period  fixed  by 
the  law,  claiming,  occupying,  and  using  it  as  his  own, 
whether  holding  the  same  under  a  deed  of  conveyance 
or  without  one,  the  law  says  shall  henceforth  be  re- 
garded as  the  true  and  lawful  owner,  with  as  perfect  a 
right  to  use,  sell  and  devise  the  same  as  any  land  ac- 
quired by  inheritance,  will,  or  purchase.  This  principle 
of  law  is  far-reaching  and  effective.  By  its  operation 
the  titles  to  land,  after  a  short  period,  become  clearly 

>  See  3  Kent's  Com.,  4i0* 


MODES  OF  ENTIRE  OWNERSHIP      109 

known,  and  thus,  at  all  times,  the  only  disputed  titles 
are  very  few  compared  with  the  entire  number.  The 
period  varies  in  the  states  from  three  to  thirty 
years.* 

3.  Personal  occupation  is  not  essential  if  other  cir- 
cumstances are  sufl5cient  to  prove  a  continuous  do- 
minion. Nor  need  the  land  be  improved  nor  cultivated. 
But  if  proof  of  this  notice  be  given,  the  fence  must  be 
sufficient  to  protect  the  land  against  the  intrusion  of 
cattle.  To  enclose  by  felling  trees  and  lapping  them 
will  not  suffice,  nor  will  a  brush  fence. 

4.  In  some  states  there  are  statutes  known  as 
"short  limitations,"  reducing  very  considerably  the 
ordinary  period.  These  apply  to  one  who  is  in  pos- 
session under  "colour  of  title,"  in  other  words,  the 
possessor  in  taking  possession  has  acted  on  the  strength 
of  a  conveyance  or  judicial  decree,  for  example, 
occupancy  under  a  junior  or  more  recent  patent  from 
a  state.  By  such  occupancy,  after  a  certain  number 
of  years,  he  is  protected  though  an  older  patent  had 
been  issued  by  the  state.  Possession  imder  such  a 
short  limitation  act  is  usually  required  to  be  accom- 
panied by  the  pa5anent  of  taxes  on  the  land  by  the 
possessor.' 

5.  The  adverse  possession  must  continue  without 
interruption  for  the  statutory  period,  if  interrupted, 
and  again  resumed  the  limitation  begins  to  run  only 
from  the  time  of  resuming.  To  recognise  the  true 
owner's  right  to  possession  is  enough  to  break  the 

1  In  Louisiana  the  period  is  thirty  years;  in  most  of  the  states  the  period  is 
fifteen  or  twenty  years.     See  note  to  3  Washburn,  p.  148. 
'Tiffany  on  Real  Estate,  §  437. 


no    BUSINESS  MAN'S  LEGAL  ADVISER 

continuity.  It  is  also  broken  if  the  owner  enters  on 
the  land  openly  and  under  a  claim  of  right  with  a 
clearly  asserted  purpose  of  taking  possession. 

Can  one  make  up  the  required  period  by  adding  or 
tacking  to  his  possession  that  of  another  person  pre- 
viously in  possession?  An  heir  can  tack  his  ancestor's 
possession  to  his  own,  and  a  remainder-man  under  a 
will  can  tack  to  his  own  possession  that  of  the  tes- 
tator and  the  life  tenant. 

An  adverse  occupant  may  purchase  an  outstanding 
title  without  affecting  the  continuity  of  his  possession, 
for  one  may  buy  his  place  at  a  smaller  price  than  by 
costly  litigation, 

6.  A  title  to  flats,  as  well  as  to  any  other  land,  may 
be  acquired  by  prescription  or  adverse  possession. 
And  the  general  rule  applies  to  flats  as  to  other  lands. 
An  actual  exclusive  possession  constitutes  a  dispos- 
session which,  if  continued  for  thje  proper  time,  will 
ripen  into  a  title.  The  title  of  everyone  in  flats,  so 
long  as  they  remain  unoccupied  and  uninclosed,  is 
subject  to  the  public  right  of  navigation;  and  there- 
fore the  use  by  everyone  of  flats  by  passing  in  vessels 
or  boats  or  anchoring  thereon,  is  not  a  dispossession, 
and  however  frequent  or  long  continued,  will  not  give 
a  title  by  prescription.  Like  the  travel  on  a  highway, 
such  use  is  presumed  to  be  in  the  exercise  of  the  public 
right,  and  is  not  adverse  to  the  owner  of  the  land. 
But  if  flats  are  enclosed  or  otherwise  actually  occupied 
by  a  person  claiming  a  right  to  the  soil  to  the  exclusion 
of  all  others,  such  use  is  a  dispossession.  Thus  build- 
ing a  wharf  and  using  the  flats  at  the  end  and  sides  to 


MODES  OF  ENTIRE  OWNERSHIP      iii 

lay  vessels  for  the  purpose  of  loading  and  unloading 
them  is  a  dispossession  of  the  flats  covered  by  the  wharf, 
and  of  the  flats  at  its  end  and  sides,  so  far  as  they  are 
exclusively  used. 

"No  title  to  land  under  water  can  be  acquired  by 
the  planting  of  oysters  for  any  length  of  time  without 
any  other  title  than  is  acquired  thereby."^ 

When  no  part  of  the  land  under  water  has  been  en- 
closed or  occupied,  and  the  only  use  has  been  in  taking 
ice  from  the  surface  of  the  water  by  the  owner  of  the 
adjoining  property,  he  acquires  no  title  thereto  by 
adverse  possession.  "Taking  ice  from  the  surface 
of  the  water  is  no  occupation  of  the  land.  It  is  akin 
to  a  profit  taken  from  the  soil  of  others."' 

7.  What  acts  are  open  and  effective  within  the  mean- 
ing of  this  rule?  Says  a  well-known  author:  "Any 
visible  or  notorious  acts  which  clearly  evidence  the 
intention  to  claim  ownership  and  possession  will  be 
sufficient  to  establish  the  claim  of  the  adverse  posses- 
sion." Acts  of  this  nature  are  the  maintenance  of 
fences  and  the  erection  of  buildings.  Hence,  the  secret 
use  of  the  premises  unknown  to  the  owner  will  not 
suffice.  Nor  would  a  survey  thereof,  nor  the  running 
of  a  line,  nor  the  lopping  of  trees,  indicate  its  location.' 
In  harmony  with  this  prindple,  when  the  owners  of 
adjacent  lands  claim  only  to  the  true  line  between 
them,  the  possession  of  one  beyond  is  not  adverse  to 
that  of  the  other;  consequently  each  must  conform  to 

•Tufts  V.  City  of  Charleston,  117  Mass.,  401. 
>  People  V.  Lowndes,   55   Hun.,   469,  470. 
•  Governeur  v.  National  Ice  Co.,  57  Hun.,  474,  482. 
•See  Chap.  IV.,  Sec.  n. 


112     BUSINESS  MAN'S  LEGAL  ADVISER 

the  true  line  as  soon  as  it  is  defined.  But  if  a  purchaser 
encloses  by  mistake  land  contiguous  to  his  own, 
believing  that  he  is  putting  his  fence  on  the  true  line, 
and  keeps  it  there  for  the  period  required  to  gain 
ownership,  he  becomes  the  real  owner. 

Again,  if  two  adjacent  owners  agree  upon  the  loca- 
tion of  a  line  for  a  division  fence  between  them,  and 
each  holds  possession  for  the  statutory  period  up  to 
that  line,  the  title  of  each  owner  becomes  perfect 
without  reference  to  the  true  boundary  line  between 
them. 

The  mere  occasional  cutting  and  appropriation 
of  timber  is  not  such  a  possession  of  the  land  as  will 
ripen  into  title  by  prescription  against  the  true  owner.* 
Nor  will  other  acts  like  the  making  of  a  survey  of  the 
land  and  marking  its  boundaries,  or  paying  taxes  and 
excluding  trespassers,  or  cultivating  crops,  or  making 
bricks,  boiling  sugar,  cultivating  grass,  pasturing 
hogs  and  cattle,  depositing  old  machinery  or  wood 
thereon.' 

Mere  temporary  breaks  in  the  enclosure  around  the 
premises,  if  enough  of  the  fence  remain  to  give  notice 
of  the  extent  of  the  adverse  claim  to  the  owner,  will 
not  stop  the  running  of  the  statute.*  If  there  was  still 
"an  actual  and  visible  appropriation  of  the  land 
commenced  and  continued  under  a  claim  of  all  others."* 
On  the  other  hand,  if  after  the  enclosure  of  land  the 
fence  goes  to  decay  and  the  land  remains  open  for 

•  Fowler  v.  Coker,  107,  Ga.,  817. 

'  Williams'v.  Rand,  9  Tex.  Civ.  App.,  631. 

•  Cyc,    991. 

•  Guotei  V.  Meade,  78  Tex.,  634. 


MODES  OF  ENTIRE  OWNERSfflP      113 

two  or  three  years  before  it  is  again  enclosed,  the  ad- 
verse possession  is  continuous.' 

8.  When  land  is  occupied  under  a  mistaken  belief 
concerning  the  true  line  and  with  no  intention  to  claim 
beyond  it,  such  possession  will  not  be  effective  against 
the  true  owner.'  Tiffany  says  that  in  some  states, 
in  such  a  case,  the  possession  is  regarded  as  adverse, 
without  reference  to  the  fact  that  it  is  based  on  mistake, 
it  being  sufficient  that  actual  and  visible  possession  is 
taken  under  claim  of  right.' 

9.  The  possession  of  a  tenant  is  that  of  the  landlord, 
and  the  latter 's  possession  h  restricted  to  the  definite 
boundaries  of  the  land  leased.  Consequently  when 
the  tenant  extends  the  boundaries  and  takes  posses- 
sion of  the  adjoining  land,  claiming  it  as  his  own,  his 
possession  of  the  additional  enclosure  will  be  deemed 
adverse  to  that  of  the  landlord.*  The  possession  of 
land  by  a  tenant  for  life  is  not  adverse  to  that  of  the 
remainder-man  or  reversioner. 

10.  No  doubt  an  adverse  claimant  may  abandon 
the  land  or  surrender  possession  to  the  true  owner  at 
any  time  before  his  dispossession  has  ripened  into  a 
title.  And  if  the  true  owner  threatens  the  claimant 
with  legal  proceedings  if  he  does  not  surrender  posses- 
sion and  he  )delds,  his  possession  is  thereby  effectively 
arrested.'  Likewise  an  agreement  to  vacate  for  a 
consideration  will  have  the  same  effect.* 

>  Settgast  V.  O'Donnell,  i6  Tex.  Civ.  App.,  s6. 
'Pharis  v.  Jones,  122  Mo.,  125. 
•J  443- 

'Pharis  V.  Jones,  122  Mo.,  125. 
•  Shaffer  v.  Lowry,  25  Pa.,  252. 
.  •  Eldridge  v.  Parish,  6  Tex.  Civ.  App.,  35. 


114     BUSINESS  MAN'S  LEGAL  ADVISER 

11.  When  a  party  wall  is  erected  to  designate  the 
boundary  between  two  lots  of  land,  and  stands  partly 
on  the  land  of  each  owner,  neither  can  be  regarded  as 
having  any  adverse  possession  of  the  land  of  the  other 
on  which  the  wall  stands  from  the  use  made  of  it  as 
a  support  to  the  building  on  his  own  lot,  but  he  may 
acquire  a  prescriptive  right  to  use  the,  wall  in  the  way 
he  has  used  it/ 

12.  Possession  may  be  acquired  of  a  non-navigable 
stream  by  keeping  up  fish  traps,  erecting  and  repair- 
ing drains  across  it  and  using  it  every  year,  during  the 
entire  fishing  season  for  the  purpose  of  catching  fish.' 

13.  Cases  may  arise  in  which  private  rights  have 
grown  up  and  become  paramount  to  the  public  rights. 
For  example,  if  lands  designated  on  a  map  or  plot  as 
bounded  by  a  public  square  are  afterward  enclosed  by 
one  and  claimed  by  him  as  his  private  property,  on 
which  he  pays  taxes  for  many  years,  and  exercises  mean- 
while the  full  rights  of  ownership  and  without  any  claim 
by  the  public,  the  public  loses  its  rights  therein.' 

In  many  states  the  rights  of  the  public  in  highways 
are  not  lost  by  the  failure  of  the  town,  city  or  other 
public  body  to  act.  "Highways,"  says  Elliott,  "be- 
long to  the  public  and  are  peculiarly  subject  to  legis- 
lative control,  and  if  the  legislature  sees  fit  to  exercise 
its  power  of  control,  through  the  agency  of  a  municipal 
corporation,  it  is  none  the  less  a  soveriegn  power. 
All  that  can  be  said  in  any  event  is  that  it  is  the  sover- 
eign acting  through  the  medium  of  local  instrumental- 

>  WQliams  v.  Buchanan,  23  N.  6.  535. 
2  Mitzel  V.  Drovers  Bank,  44  Md.,  348. 
*Reutei  V.  Laive,  59  Wis.,.  892. 


MODES  OF  ENTIRE  OWNERSHIP      115 

ities.  The  doctrine  that  highways  can  not  be  lost 
by  adverse  possession  is  supported  by  other  well- 
settled  principles  of  the  law.  There  can  be  no  rightful 
permanent  private  possession  of  a  public  street.  Its 
obstruction  is  a  nuisance  punishable  by  indictment. 
.  .  .  Even  if  title  to  a  highway  may  be  acquired  by 
adverse  possession,  it  is  not  every  encroachment 
thereon  that  constitutes  such  possession.  Setting  out 
shade  trees,  making  a  sidewalk,  fencing  in  a  portion 
of  the  way,  and  the  like,  have  been  held  insufficient 
to  establish  a  claim  by  adverse  possession. "  ' 

§  5.  Acquisition  of  Land  by  Accretion 

1.  Deposit. 

2.  Islands. 

3.  Alluvion. 

4.  Avulsion. 

5.  Land  bounded  on  shore-lines  of  non-navigable 

rivers.  ' 

6.  How  owner  may  protect  his  land  from  wasting 

away. 

1.  Another  mode  of  acquiring  land  is  by  actual 
making  or  deposit  through  the  operation  of  natural 
causes.  Thus,  seaweed  and  other  marine  plants 
wafted  on  the  shore  become  vested  in  the  owner  of 
the  soil.  In  like  manner,  the  owner  of  land  which  has 
been  increased  gradually  through  the  action  of  water 
becomes  entitled  to  the  addition. 

>Sec.  883. 


ii6     BUSINESS  MAN'S  LEGAL  ADVISER 

2,  Sometimes  islands  are  formed  in  the  sea  or  in 
navigable  rivers.  These  belong  to  the  state.  A 
different  rule  applies  to  islands  formed  in  a  non- 
navigable  or  non-tidal  stream.  In  this  an  island  that 
forms  on  one  side  of  the  thread  belongs  wholly  to  the 
land-owner  on  that  side;  on  both  sides  its  ownership 
is  divided.  Lands  that  border  a  non-navigable  stream 
belong  to  adjacent  proprietors  and  are  divided  by  the 
thread  or  central  line.  When  this  line  slowly  changes 
by  the  removal  of  the  land  from  one  side  to  the  other, 
it  still  remains  the  boundary  between  the  adjoining 
proprietors. 

3.  The  owner  of  a  strip  along  a  river  may  rightfully 
retain  an  accumulation  of  sand,  earth,  loose  stones,  and 
gravel  brought  down  by  a  river,  and  known  as  alluvion. 
Its  chief  characteristic  is  its  imperceptible  increase. 
Again,  a  riparian  owner  on  a  navigable  stream  has  a 
right  to  remove  and  sell  sand  which  has  been  deposited 
as  alluvion  between  high-  and  low-water  marks. 
Should  a  railroad  company,  for  its  own  purpose,  and 
not  for  the  improvement  of  the  stream,  erect  an 
obstruction  on  the  opposite  banks  which  should  change 
the  current  and  sweep  away  the  sand  and  prevent 
further  deposits,  the  riparian  owner  would  be  entitled 
to  recover  damages  both  for  the  sand  thus  swept  away 
and  for  the  loss  of  future  alluvion. 

On  one  of  these  occasions  an  accretion  of  land  had 
formed  along  the  levee  at  New  Orleans  on  the  bank  of 
the  river,  which  had  been  dedicated  to  public  use. 
The  alluvion  was  declared  to  be  part  of  the  public 
levee.    If  the  land  of  a  private  owner  should  run  down 


MODES  OF  ENTIRE  OWNERSHIP       117 

to  a  river  without  any  intervening  public  way,  he 
would  have  the  accretion  to  the  bank  as  an  incident 
of  his  ownership.' 

To  acquire  ownership  in  this  manner  the  accretion 
must  be  slow,  imperceptible  from  day  to  day,  though 
seen  clearly  enough  after  a  considerable  length  of  time. 
This  may  seem  to  be  a  somewhat  indefinite  test,  yet 
has  proved  to  be  practical.  The  addition  to  lands 
during  short  periods  is  clearly  seen  at  some  places  as 
well  as  the  wasting  away  of  lands  at  others.  Yet  the 
owners  of  the  disappearing  land  have  no  claim  on  the 
owners  of  the  new  land,  for  the  reason  that  there  can- 
not be  such  an  identification  of  the  soil  as  will  meet  the 
requirements  of  the  law.  Legal  principles  are  intended 
for  practical  operation,  and  it  would  be  highly  im- 
practicable to  reduce  the  rights  of  the  gainers  and  losers 
of  soil  by  these  operations  of  nature  to  a  nicer  or  more 
subtle  principle. 

This  right  to  accretions  is  sometimes  gained  by  the 
gradual  lowering  of  the  water  of  a  lake  or  pond.  These 
belong  to  the  adjacent  owner. 

In  New  Jersey  an  increase  of  land  adjacent  to  the 
sea  is  so  gradual  in  some  places  that  it  cannot  be  ob- 
served while  actually  going  on,  although  the  change 
is  visible  from  year  to  year.  It  was  long  ago  decided 
that  these  accretions  belong  to  the  owner  of  the  land 
to  which  they  are  made.  But,  in  Louisiana,  no  private 
title  is  recognised  to  any  accretions  from  the  sea. 

4.  The  process  of  taking  soil  by  the  sudden  action 
of  water  from  the  land  of  one  and  depositing  it  on  the 

>  3  Washbun,  §  1883,  p.  73. 


Ii8     BUSINESS  MAN'S  LEGAL  ADVISER 

land  of  another  is  known  as  avulsion.  The  soil  still 
belongs  to  the  first  owner,  unless  his  ownership  is  gone 
by  the  union  of  the  soil  with  that  of  the  second  owner. 
Of  course,  to  reclaim  it,  he  would  be  obliged  to  prove 
its  identity.' 

5.  In  conveying  land  bounded  on  the  shore  line  of 
navigable  waters,  the  deed  will  include  the  accretions. 

6.  An  owner  of  riparian  land  may  rubble  his  bank 
to  prevent  the  water  from  washing  away  his  soil,  but 
he  cannot  build  anything  into  the  stream  that  will 
change  its  current  for  the  purpose  of  land  protection. 

§  6.  Acquisition  of  Land  by  Public  Grant 

1.  Public  ownership. 

2.  Construction  of  public  deed. 

3.  Form  of  conveyance. 

4.  Certificate  of  entry. 

5.  Death  of  purchaser  before  issue  of  patent. 

6.  Assignment  of  certificate  and  issue  of  patent  in 

assignor's  name. 

7.  Identification  of  land. 

8.  Pre-emption  right. 

9.  Cannot  be  assigned. 

10.  Conveyance  by  pre-emptor.  ^ 

11.  Creditors  cannot  levy  on  him. 

I.  All  lands  in  this  country  are  vested  in  the  state  or 
the  United  States.    Those  belonging  to  the  general 

'  "Accretion,  no  matter  to  which  side  it  adds  ground,  leaves  the  bound- 
ary still  the  centre  of  the  channel.  Avulsion  has  no  effect  on  boundary,  but 
leaves  it  in  the  centre  of  the  old  channel."  New^rleans  v.  United  States, 
10  Pet.,  662,  717. 


MODES  OF  ENTIRE  OWNERSHIP       119 

government,  though  located  within  the  limits  of  the 
state,  are  under  the  former's  control.  Other  public 
lands  are  under  the  control  of  the  state,  unless  it  has 
conveyed  them  away.  The  laws  that  apply  to  lands 
are  those  of  the  state  or  territory  wherein  they  are 
located.    This  principle  applies  everywhere. 

2.  There  is  another  principle  of  construction.  In 
grants  between  the  state  and  an  individual,  a  deed  is 
always  construed  in  favour  of  the  state;  in  grants 
between  one  individual  and  another,  the  grantee  is 
favoured. 

3.  There  is  no  special  form  of  conveying  a  public 
grant.  It  may  be  done  by  a  special,  or  a  general  act 
of  Congress.  Millions  of  acres  have  been  sold  by 
authority  of  Congress,  and  general  laws  have  been 
passed  for  conveying  them.  These  will  be  briefly 
described. 

4.  A  purchaser  desiring  land  may,  after  the  payment 
of  his  purchase  money,  receive  from  the  register  of  lands 
a  certificate  of  entry,  which  entitles  him  to  a  patent. 
This  is  a  formal  deed  of  conveyance  required  for  the 
perfecting  of  his  title,  signed  by  the  President  of  the 
United  States,  or  the  Secretary  of  the  Interior,  or 
by  some  other  ofl&cer  duly  authorized  by  act  of  Con- 
gress. 

By  granting  a  certificate  of  entry  to  a  person,  he  is 
vested  with  an  imperfect  legal  title.  It  is  good  enough, 
however,  to  enable  him  to  maintain  an  action  of  eject- 
ment or  trespass  against  a  wrongdoer.'     Again,  after 

>  Bnunmett  v.  Pearle,  36  Ark.,  471;  Broussard  v.  Broussard,  43  La.  Ann., 
931. 


120     BUSINESS  MAN'S  LEGAL  ADVISER 

issuing  the  certificate  to  him,  the  land  cannot  be  sub- 
sequently sold  by  the  Government  to  another.  The 
certificate  also  vests  in  the  purchaser  a  suflScient  title 
to  enable  him  to  sell  or  devise  it. 

5.  Should  the  purchaser  die  before  the  patent  is 
issued  the  land  would  descend  to  his  heirs;  of  course, 
the  patent  ought  then  to  be  made  out  in  their  name; 
but,  should  it  be  issued  in  the  name  of  the  purchaser, 
not  knowing  of  his  death,  his  heirs  could  maintain  their 
ownership. 

\  6.  A  purchaser  who  assigns  his  certificate  of  entry 
and  takes  out  a  patent  in  his  own  name,  as  is  sometimes 
done,  will  hold  the  legal  title  for  his  assignee;  were  he 
unwilling  to  convey  to  the  true  owner,  he  can  be  legally 
required  to  make  a  conveyance. 

7.  In  all  cases  the  land  must  be  so  described  in  the 
certificate  of  entry  that  it  can  be  identified.  An  inaccu- 
rate or  obscvu-e  description  bars  the  right  to  a  patent. 

8.  To  encourage  immigration  and  settlement  of 
public  lands.  Congress  long  ago  provided  that  an  actual 
settler  on  public  land,  who  makes  an  entry  in  the 
records  of  the  land-office  of  his  claim,  with  a  proper 
description  thereof,  acquires  a  pre-emption  right,  which 
entitles  him  to  a  patent  of  the  land  thus  occupied  at 
a  minimum  price  fixed  by  law.  By  taking  such  action 
he  gains  a  superior  claim  over  the  land  to  all  other 
persons.  He  cannot  acquire,  in  this  way,  a  right  to 
all  creation,  but  only  a  quarter  section  —  one  hundred 
and  sixty  acres.  Furthermore,  he  cannot  acquire 
any  right  in  a  reservation,  or  to  land  located  in  a  town 
or  city,  or  that  which  has  already  been  taken,  or  is 


MODES  OF  ENTIRE  OWNERSHIP       121 

known  to  contain  minerals.  In  other  words,  the  law 
aims  simply  at  the  distribution  of  lands  adapted  to 
agricultural  purposes. 

Again,  he  must  take  oath  that  he  does  not  own  a 
section  in  the  state  or  territory,  or  that  he  has  not 
abandoned  a  claim  elsewhere  in  the  same  state  or 
territory  in  order  to  take  up  a  quarter  section  of  the 
public  land.  When  he  has  thus  pre-empted  it  he 
acquires  essentially  the  same  rights  therein  as  are 
acquired  by  a  person  to  whom  a  certificate  of  entry  has 
been  given.  To  perfect  his  title  therefor  he  must 
pay  the  purchase  money  required  by  law  within  two 
and  a  half  years  after  pre-empting  the  same. 

9.  His  title,  though  incomplete  prior  to  receiving  the 
patent,  descends  to  his  heirs,  but  it  cannot  be  assigned, 
thereby  giving  an  assignee  a  right  to  the  pre-emption 
as  against  the  Government,  or  to  anyone  claiming 
imder  a  patent. 

10.  But  when  the  pre-emptor  imdertakes  to  convey 
before  he  has  acquired  the  legal  title,  the  assignee  can 
acquire  a  title  by  instituting  proper  proceedings, 

11.  In  like  manner  creditors  cannot  levy  upon  a 
pre-emption  right  and  take  it  to  discharge  the  owner's 
indebtedness. 

§  7.  Acquisition  of  Title  by  Estoppel 

1.  What  is  an  estoppel. 

2.  Kinds. 

3.  Nature  and  effect. 

4.  What  must  be  done  to  establish  an  estoppel. 


122     BUSINESS  MAN'S  LEGAL  ADVISER 

5.  A  misrepresentation  that  does  not  mislead  is  not 

an  estoppel. 

6.  Efifect  of  record  as  a  notice. 

7.  A  temporary  possessor  of  land  by  agreement  is 

estopped  from  denying  other  party's  title. 

8.  Estoppel  by  deed. 

9.  Who  are  bound  by  an  estoppel. 

10.  Estoppel  does  not  bind  grantor  by  repurchase. 

1.  Estoppel  arises  in  those  transactions  wherein  the 
law  draws  some  conclusions  from  the  acts  of  one  party 
in  favour  of  another  concerning  the  ownership  of  lands, 
which  it  will  not  permit  him  to  controvert  or  deny. 
Thus,  should  a  man  named  Smith  sign  a  deed  as  Jones, 
he  would  be  estopped  by  law  from  proving  that  his 
name  is  Smith  in  order  to  avoid  the  deed  he  had  signed. 
Putting  the  rule  in  a  more  general  form,  one  who 
has  the  means  of  knowing  his  rights  should  not  mis- 
lead another  and  influence  him  to  do  that  which 
he  would  not,  if  he  knew  the  true  situation.  One, 
therefore,  who  is  unmindful  or  careless  in  his  mis- 
representations must  bear  the  loss  caused  by  his 
own  conduct. 

Sometimes  the  courts  have  declared  a  different  rule; 
namely,  that  one  who  has  misled  another  uninten- 
tionally can,  after  indemnif)dng,  be  permitted  to  regain 
fully  his  rights. 

2.  Estoppels  are  divided  into  two  kinds:  Estoppels 
by  act,  which  arise  by  the  positive  act  of  an  individual; 
and  estoppels  by  deed,  which  spring  from  the  construc- 
tion of  a  deed  or  writing  he  may  have  given. 


MODES  OF  ENTIRE  OWNERSHIP      123 

3.  One  or  two  illustrations  may  be  given  to  show 
more  clearly  the  nature  and  effect  of  this  principle.  A 
man  dedicates  a  piece  of  land  as  a  public  square,  which 
is  accepted,  and  individuals,  supposing  that  the  square 
will  always  exist,  build  larger  and  more  costly  houses 
than  they  otherwise  would  have  done.  The  dedication 
cannot  be  afterward  revoked.  Nor  does  the  estoppel 
depend  on  the  length  of  the  time  such  individuals  have 
been  occupying  the  ground  around  the  square. 

4.  To  establish  an  estoppel  three  things  must  be 
shown:  First,  that  the  person  who  is  sought  to  be 
estopped  has  made  an  admission  or  done  an  act  with  the 
intention  of  influencing  the  conduct  of  another,  or,  at 
least,  had  reason  to  believe  that  another  would  be 
influenced  thereby;  second,  that  the  other  party  has 
been  influenced  by  the  act  or  declaration;  third,  that 
the  other  party  will  be  prejudiced  or  injured  by  per- 
mitting the  act  or  admission  to  be  disproved. 

Thus,  A  was  about  to  purchase  a  piece  of  land  adjoin- 
ing B's.  Not  knowing  the  exact  boundary  line,  he 
asked  B  to  point  it  out,  which  was  done.  B  knew  at 
the  time  of  A's  inquiry  that  his  object  in  inquiring  was 
not  curiosity,  that  he  was  about  to  become  the  pur- 
chaser. Having  purchased  the  land,  B  was  estopped 
from  denying  that  the  line  he  had  pointed  out  to  A 
was  the  true  one. 

The  chief  or  fundamental  thought  in  the  judicial 
mind  has  always  been  the  fraud  that  would  be  perpe- 
trated on  the  innocent  party  if  the  other  were  per- 
mitted to  deny  his  representation  or  action.  The 
case  above  mentioned  illustrates  this  idea  as  clearly  as 


124     BUSINESS  MAN'S  LEGAL  ADVISER 

would  a  thousand  others.  A,  for  example,  relying  on 
B's  statement,  purchases  the  land  and  makes  im- 
provements, building,  perhaps,  an  expensive  house  and 
adorning  the  grounds.  If  B  could  afterward  say  that 
he  had  made  a  mistake,  acting  without  the  full  knowl- 
edge of  his  own  rights,  and  were  permitted  to  show 
that  the  true  line  was  somewhere  else,  A's  would  be 
the  loss,  perhaps  a  serious  one.  The  law  estops  B 
from  doing  such  a  thing.' 

5.  An  incorrect  representation  concerning  one's 
boundary  line  or  other  matter,  though  not  misleading, 
because  the  other  party  has  the  same  or  better  knowl- 
edge himself,  creates  no  estoppel.  The  element  of 
fraud  is  absent,  because,  whatever  may  have 
been  the  intention  of  the  party  who  made  the 
statement,  the  other  is  not  defrauded  or  injured 
thereby. 

6.  A  man  who  holds  a  title  to  land  that  has  been  duly 
recorded  thereby  gives  all  the  notice  required  by  law, 
so  long  as  he  remains  passive.  It  is  only  when  another 
is  purchasing  land  on  which  the  seller  has  some  un- 
recorded lien  or  charge,  unknown  to  the  purchaser, 
that  he  is  bound  to  give  notice.  In  such  a  case,  should 
he  fail  to  give  the  notice,  he  would  be  estopped  from 
setting  up  a  claim  against  the  purchaser.  In  a  case 
of  this  kind  a  tenant  had  erected  a  bowling  alley  on 
the  land  of  his  landlord,  and,  during  the  term  of  the 

•The  Supreme  Court-of  Pennsylvania  has  thus  stated  the  rule:  "The 
primary  ground  of  the  doctrine  is,  that  it  would  be  a  fraud  on  the  part  of  a 
party  toassert  what  his  previous  conduct  had  denied,  when,  on  the  faith  of 
that  denial,  others  have  acted.  The  element  of  fraud  is  essential  either  in 
the  intention  on  the  part  of  the  party  estopped  or  in  the  effect  of  the  evidence 
which  he  attempts  to  set  up." 


MODES  OF  ENTIRE  OWNERSHIP      125- 

lease,  the  lessor  offered  the  estate  at  auction.  The 
lessee  put  in  a  bid,  but  another  bid  higher.  The  owner 
of  the  bowling  alley  was  not  estopped  from  claiming 
and  removing  it  as  a  fixture,  nothing  having  been  said 
about  it  at  the  time  of  the  sale.  In  judicial  language, 
"it  is  only  when  silence  becomes  a  fraud  that  it  post- 
pones." '  No  man  can  set  up  another's  act  or  decla- 
ration as  the  ground  of  an  estoppel  unless  he  has  been 
misled  or  deceived  thereby. 

7.  One  who  enters  into  the  possession  of  land  under 
an  executory  contract  with  another  is  estopped  from 
denying  the  latter's  title,  for  this  would  be  a  violation 
of  good  faith  in  obtaining  possession. 

In  like  manner  one  who  is  under  an  obligation  to 
give  up  the  possession  of  the  land  to  another,  a  lessee, 
for  example,  is  estopped  from  denying  the  title  of  his 
landlord.  The  occupant  is  regarded  as  having  pledged 
his  faith  to  depart,  and  will  not  be  permitted  to  do 
anything  to  impair  the  landlord's  title. 

8.  An  estoppel  may  be  effected  by  deed.  This  is 
founded  on  the  idea  that  the  grantor  or  seller  is  not 
permitted  to  set  aside  his  deed  by  an  inconsistent  act. 
He  is,  therefore,  estopped  from  denying  his  title,  and, 
should  he  acquire  one  after  parting  with  his  own,  he 
could  not  set  this  up  to  defeat  it.  In  other  words,  after 
making  a  conveyance  of  his  property,  he  is  bound  by 
his  action,  even  though  not  the  possessor  or  owner  at 
that  time,  but  afterward. 

The  covenants  of  warranty  in  a  deed  raise  an  estop- 
pel.   A  defective  deed  cannot  create  such  an  estoppel, 

IHai  V.  Epley,  31  Pa.,  331. 


126     BUSINESS  MAN'S  LEGAL  ADVISER 

for  the  simple  reason  that  it  is  not  a  valid  act  of  trans- 
fer. 

In  like  manner  an  ordinary  quit-claim  deed,  convey- 
ing all  the  right,  title  and  interest  of  a  grantor,  does 
not  work  an  estoppel,  for  the  reason  that  the  grantor 
by  his  conveyance,  does  nothing  more  than  convey 
whatever  title  he  may  have  in  the  property.  If  he 
possesses  none  no  title  is  granted,  and  no  estoppel  can 
grow  out  of  the  operation. 

A  man  acquires  nothing  by  a  deed  from  one  who  has 
neither  title  nor  possession.  This  is  clear  enough 
without  further  discussion.  Some  of  the  states  have 
settled  this  question  by  enacting  that  a  title  acquired 
afterward  by  a  grantor  passes  instantly  from  him  to 
the  grantee.  Where  such  a  statute  exists  there  is 
no  room  for  more  questioning. 

9.  An  estoppel  binds  the  representer  and  all  who  are 
in  privity  with  him  by  relationship  or  otherwise.  A 
stranger  cannot  take  advantage  of  an  estoppel,  nor 
can  he  be  bound  thereby.  Again,  no  one  can  enforce 
an  estoppel  except  the  person  to  whom  the  representa- 
tion was  made,  or  those  who  are  in  privity  with  him 
and  claim  under  him. 

In  order  that  one  may  be  bound  by  an  estoppel,  he 
must  be  legally  capable  of  making  a  valid  deed. 
Minors  and  married  women  cannot  be  boimd  in  this 
manner. 

10.  A  grantor  or  seller  may  reacquire  his  title  by  ad- 
verse possession,  for  in  doing  so  he  is  not  acting  con- 
trary to  his  original  grant  or  sale.  By  thus  acquiring 
a  title  he  is  simply  acting  like  one  who  should  subse- 


MODES  OF  ENTIRE  OWNERSHIP       127 

{quently  become  a  purchaser  by  the  simple  process  of 
repurchasing. 

§  8.  Abandonment  of  Land 

1.  Land  may  be  thus  lost. 

2.  What  is  an  abandonment. 

3.  Title  cannot  be  acquired  by  abandonment. 

4.  Effect  of  redelivery  and  destruction  of  deed. 

1.  The  ownership  of  land  may  be  lost  by  abandon- 
ment. When  the  fact  of  abandonment  is  unquestioned 
no  one  who  may  have  taken  possession  can  be  com- 
pelled to  relinquish  his  acquisition.  Whether  land 
has  been  abandoned  or  not  is  a  question  of  fact  to  be 
ascertained  in  the  same  manner  as  facts  usually  are. 

2.  Some  limitations  to  this  principle  may  be  given. 
The  mere  non-user  of  a  way  for  a  certain  time  does  not 
work  an  abandonment  of  the  owner's  right  to  enjoy 
it.  But,  if  a  lessor  enters  and  expels  his  tenant,  who 
does  not  choose  to  re-enter,  the  rent  is  gone.  If  he 
returns  the  rent  is  suspended  only  during  the  time  of 
his  expulsion.  A  man  may  abandon  an  easement 
by  exchanging  it  for  another. 

This  principle  is  not  often  applied  in  practice,  for 
people  rarely  give  up  intentionally  what  truly  belongs 
to  them.  Consequently  the  efforts  to  show  that  the 
owners  of  lands  have  abandoned  them  are  in  most 
cases  fruitless,  because  there  is  every  presumption 
against  such  action.  A  strong  case,  therefore,  is  re- 
quired to  perfect  an  abandonment. 

3.  Though  a  title  may  be  lost  by  abandonment,  no 


128     BUSINESS  MAN'S  LEGAL  ADVISER        i 

one  can  acquire  a  title  by  such  action  on  the  part  of 
another.  In  other  words,  though  a  legal  title  can  be 
divested  or  lost  by  abandonment,  no  other  person  can 
acquire  a  title  by  the  abandoner's  action. 

This  question  sometimes  arises  when  a  person  has 
acquired  a  title  by  adverse  possession,  or  is  seeking  to 
acquire  a  title  by  adverse  use.  It  is  plain  enough  that, 
if  one's  title  is  not  complete,  as  we  have  explained,  and 
he  abandons  his  land,  the  former  owner  regains  his 
possession  for  the  reason  that  his  title  had  not  become 
extinct  at  the  time  of  the  abandonment.  But  a  dif- 
ferent principle  applies  to  a  title  that  has  become 
complete  by  the  adverse  use  of  another. 

4.  On  the  redelivery  of  a  deed  by  the  grantee,  fol- 
lowed by  its  destruction,  the  title  is  revested  in  the 
grantor,  unless  the  deed  has  been  recorded.  Says  the 
Supreme  Court  of  New  Hampshire:  "It  is  well 
settled  in  this  state  that  the  redelivery,  by  a  grantee 
to  his  grantor,  of  an  unrecorded  deed,  with  the  inten- 
tion and  for  the  express  purpose  of  having  it  cancelled, 
and  Qf  revesting  the  title  to  the  premises  therein  de- 
scribed in  the  grantor,  has  precisely  the  effect  in- 
tended, upon  the  principal  of  estoppel."'' 

After  recording  a  deed  nothing  short  of  its  cancel- 
lation has  the  effect  of  passing  the  title  back  to  the 
grantor. 

§  9.  By  Attachment 

I.  For  what  causes  an  attachment  may  be  issued: 
a. —  Fraud, 

iDodge  V.  Dodge,  33  N.  H.,  p.  495< 


MODES  OF  ENTIRE  OWNERSHIP      129 

b. —  Fraudulent  transfer  of  property, 
c. —  Absconding. 

2.  Other  causes. 

3.  Cannot  be  issued  against  a  guardian,  executor,  etc. 

4.  What  property  may  be  taken : 

a. —  Only  debtor's  property  at  that  time^ 

b. —  Crops, 

c. —  Property  in  agent's  possession, 

d. —  Money, 

e. —  Goods, 

/. —  Property  on  which  a  lien  exists, 

g. —  Property  held  by  an  assignee, 

h. —  Property  held  by  officers  of  the  law, 

i. —  Partner's  interest. 

5.  How  land  is  attached. 

6.  Exemptions: 

a. —  Food  and  food  animals, 
b. —  Wearing  apparel, 
c. —  Household  furniture, 
d. —  Beasts  of  husbandry, 
e. —  Mechanic's  tools, 
/. —  Wagons,  etc., 
g. —  Homestead. 

7.  Who  can  claim  exemption. 

8.  Meaning  of  householder. 

9.  Exemption  may  be  waived  except  wages. 
10.  Garnishment  —  Debt  must  be  due. 

n.  An  inhabitant  in  another  state  can  not  be  gar- 
nished. 
X2.  When  foreign  corporation  can  be  garnished. 
13.  Garnishment  of  municipal  corporation. 


I30    BUSINESS  MAN'S  LEGAL  ADVISER 

14.  An  executor  or  administrator  cannot  be. 

15.  Partnership  may  be  by  creditor  of  a  partner. 

16.  How  joint  debtors  may  be  garnished^ 

17.  Garnishment  of  wages. 

18.  Garnishment  of  a  bank  deposit. 

19.  Bank  cannot  be  garnished  for  draft  secured  by 

bill  of  lading. 

20.  Garnishment  of  public  deposit. 

21.  Securities  in  bank's  safety  vault  cannot  be  gar- 

nished. 

22.  Collateral  securities  may  be  for  excess  beyond 

loan. 

23.  Deposit  covered  by  a  general  assignment  cannot 

be  garnished. 

§9.   Acquisition  of  Land  by  Legal  Process; 
Attachment  and  Execution 

I.  Another  way  to  acquire  land  as  well  as  other 
property  is  to  attach  it  by  pursuing  the  methods  pre- 
scribed by  law  ending  with  its  sale  in  response  to  the 
owner's  demand  for  the  discharge  of  his  indebtedness, 
whereby  the  purchaser  acquires  a  good  title.  Besides 
statutes  are  many  general  principles;  on  this  double 
basis  rests  the  law  on  the  subject.  The  first  import- 
ant question  is,  for  what  causes  can  an  attachment 
be  issued? 

(a)  Fraud  in  contracting  a  debt  is  a  frequent  groimd 
of  attachment.  A  preconceived  purpose  not  to  pay 
for  goods  furnished  on  credit,  or  not  to  keep  an  agree- 
ment regarding  the  disposition  of  property,  is  a  fraud 


MODES  OF  ENTIRE  OWNERSHIP       131 

within  the  meaning  generally  of  the  statute.  Mere 
failure,  however,  to  pay  a  debt  at  maturity  is  not  a 
fraud. 

(b)  The  fraudulent  transfer  or  disposition  of  prop- 
erty is  another  ground  of  attachment.  A  transfer 
or  assignment  is  fraudulent  if  benefits  are  reserved 
to  the  grantor,  or  fictitious  claims  are  added.  A 
sale  of  goods  in  the  usual  mode  of  merchants 
to  customers  who  come  to  his  store  to  buy  is 
not  a  fraudulent  disposition  of  them  which  will 
warrant  an  attachment  against  a  resident  debtor.* 
As  exempt  property  is  beyond  the  reach  of  credits, 
any  disposition  thereof  by  the  debtor  is  legal.  This 
rule  was  once  applied  to  the  owner  of  a  homestead.' 

The  transfer  must  be  voluntary,  either  absolutely 
or  conditionally,  as  by  a  mortgage.  When  an  order 
of  attachment  has  been  issued  on  an  affidavit  charging 
that  the  debtor  is  an  assignor  of  property  with  a 
fraudulent  intent,  the  attaching  creditor  must  sustain 
his  charge,  or  his  attachment  will  not  be  effective. 
The  deed  of  assignment  must  clearly  show  on  its  face 
an  actual  personal  interest  on  the  part  of  the  debtor 
to  hinder,  delay  or  defraud  his  creditors.  The  mere 
fact  that  the  deed  may  be  defectively  executed  is  not 
sufficient  to  sustain  the  attachment.' 

(c)  Among  those  against  whom  attachments  are 
most  frequently  issued  are  absconders,  or  those  in- 
tending to  abscond.  Who  is  such  a  person  within  the 
meaning  of  the  law?    One  who  conceals  or  absents 

'  Smith  V.  Easton,  54  Md.,  138. 
'Davis  V.  Land,  88  Mo.,  436. 
*McPike  V.  Atwell,  34  Kan.,  143. 


132     BUSINESS  MAN'S  LEGAL  ADVISER 

himself  for  the  express  purpose  of  avoiding  the  process. 
He  need  not  leave  the  state. 

2.  When  the  reason  for  attachment  is  that  the  debt 
was  for  work  and  labour  performed  which  the  debtor 
should  have  immediately  paid,  an  attachment  cannot 
be  maintained  when  the  whole  transaction  shows  a 
mutual  account  consisting  of  debits  and  credits.*  If 
the  attachment  law  provide  that  when  the  debtor 
has  failed  or  refused  to  pay  the  price  or  value 
of  any  article  or  thing  delivered  to  him  on  the 
delivery  thereof,  the  person  suing  must  show  an 
unconditional  contract  to  pay  on  delivery  and 
demand  therefor.' 

Unless  statutes  authorise  the  proceeding  it  cannot 
be  begun  against  a  guardian,  an  executor  or  adminis- 
trator, or,  in  truth,  against  any  trustee  in  his  repre- 
sentative capacity.' 

4.  Let  us  next  inquire  what  property  may  be  taken? 
The  answer  is  any  property  which  may  be  seized  and 
taken  by  an  oflScer  of  the  law  in  a  legal  manner. 
Nothing  whose  sale  is  prohibited  by  law  can  be  at- 
tached—  a  principle  often  applied  to  intoxicating 
liquors.  The  sherifiE  has  no  power  to  seize  corre- 
spondence belonging  to  the  debtor.  And  if  he  has 
authority  to  seize  and  take  partnership  books  and  also 
its  papers,  his  power  is  simply  to  take  and  safely  keep 
them.  To  look  into  them  and  take  copies  would  be 
a  gross  abuse  of  power.* 

» Morris  V.  Everly,  19  Colo.,  529. 

»  Miller  v.  Godfrey  &  Co.,  i  Colo.  App.,  177. 

»Cox  V.  Henry,  113  Ga.,  259. 

*fiergmaD  v.  Dettlebacb,  11  How.  Pi.,  46- 


MODES  OF  ENTIRE  OWNERSHIP      133 

(a)  As  the  attachment  takes  effect  from  the  time  it 
is  served  only  such  property  can  be  taken  as  then 
belonged  to  the  debtor.  It  covers  most  kinds  of 
property,  land,  hay,  tools,  vessels,  promissory  notes, 
locomotive  engines,  cars,  stage  coaches  with  horses, 
cord-wood  and  charcoal,  property  in  a  newspaper 
office,  wearing  apparel,  money  in  the  debtor's  posses-' 
sion  if  the  officer  can  seize  it  without  violating  the 
debtor's  personal  security,  corporate  shares  of  stock. 
Says  Shinn:  "Many  states  permit  the  attachment  of 
shares  of  stock  in  a  corporation,  to  be  attached  by  a 
creditor  of  him  who  holds  the  legal  title  to  the  same 
even  though  they  may  appear  upon  the  books  of  the 
company  to  be  owned  by  another.  And  some  states 
provide  specially  for  such  attachment,  but  many  others 
hold  that  such  stock  is  not  attachable,  because  the 
owner  has  no  legal  estate  in  the  property  of  the  cor- 
poration.   The  corporation  owns  it  all." 

(b)  Crops,  unless  the  landlord  has  a  lien  on  them, 
may  be  attached  when  severed  from  the  land,  and 
generally  when  they  are  ripe  and  ready  for  harvest. 
This  rule  includes  tobacco,  hay  and  grain  in  the'straw. 
When  in  this  condition  the  officer  can  enter,  cut  down, 
seize  and  sell  the  same  as  personal  estate.  But  hides 
in  a  vat  for  tanning  cannot  be  attached  because  they 
cannot  be  returned  in  the  same  condition.'  To 
render  the  attachment  valid  the  crops  must  be  severed 
from  the  land  and  kept  in  the  attaching  officer's 
custody.  By  a  special  statute  regulating  the 
attachment  of  property  that  cannot  be  manually  de- 

>  Cheshire  Nat.  Bank  v.  Jewett,  xig  Mass.  341. 


134     BUSINESS  MAN'S  LEGAL  ADVISER 

livered  there  may  be  a  levy  on  an  unripe  growing 
crop/ 

The  landlord's  interest  in  a  growing  crop  which  the 
tenant  is  raising  on  shares  cannot  be  attached.  But 
"  the  growing  crop  of  a  tenant  is  in  most  states  subject 
by  the  landlord  for  rent  due."' 

(c)  Property  in  an  agent's  possession  may  be  seized 
as  the  principal's  wherever  found.  The  officers  of  a 
bank,  however,  with  whom  a  small  locked  trunk  has 
been  deposited  in  the  vault  for  safe  keeping  have  no 
authority  to  open  it  for  the  purpose  of  ascertaining 
its  contents,  nor  can  they  be  garnished  as  the  trustees 
of  the  owner  either  for  the  contents  of  the  trunk  or  for 
the  trunk  itself.'  But  property  in  an  agent's  possession 
cannot  be  attached  for  his  debt. 

(d)  Money  due  to  a  federal  pensioner  is  exempt 
while  in  possession  of  the  government  officer,  but  no 
longer.  If  it  has  been  deposited  in  the  name  of  the 
pensioner's  wife,  it  still  belongs  to  him  and  can  be  at- 
tached by  his  creditors. 

(e)  A  vendor  who  has  parted  with  the  title  to  prop- 
erty has  no  attachable  interest.  Shinn  says  that 
merchandise  sold  on  credit  and  still  in  the  vendor's 
possession  is  attachable  for  his  debts,  though  the 
vendee  may  have  given  notes  for  the  price.  Personal 
property  in  possession  of  a  fraudulent  vendee  may  be 
attached  by  the  vendor's  creditors  because  the  title 
has  never  passed  from  the  vendor.  This  principle 
does  not  apply  after  he  has  sold  it  to  an  innocent 

•Raventas  v.  Green,  S7  Col.,  254. 
>  I  Shinn  on  Attachment,  §  52. 
•  Bottom  V.  Clarke,  7  Cu^.,  487. 


MODES  OF  ENTIRE  OWNERSHIP       135 

vendee.  When  personal  property  is  sold  on  the 
express  condition  that  the  title  shall  not  vest  in  the 
purchaser  until  the  agreed  price  is  paid,  he  has  no 
interest  therein  which  can  be  attached.  A  manu- 
factured article  still  in  the  manufacturer's  possession 
in  an  unfinished  condition  can  be  attached.' 

(/)  "Generally"  says  Shinn,  "chattels  subject 
to  a  lien  cannot,  unless  by  virtue  of  a  special  statute  be 
attached.  This  is  for  the  protection  of  the  party 
having  the  lien,  and  if  he  waive  his  objection  to  the 
attachment,  it  does  not  lie  in  the  mouth  of  the  general 
owner  to  complain.  Such  an  attachment  is  not  void, 
but  only  voidable  at  the  election  of  the  possessor  of 
the  lien. " ' 

Property  in  a  common  carrier's  possession  may  be 
attached.  As  the  carrier  has  a  prior  lien  for  his 
service,  the  attaching  creditor  must  pay  this  before 
he  can  take  the  goods  away.  Again,  when  the  shipper 
alone  has  a  bill  of  lading  the  right  of  possession  is  in 
him  and  the  goods  cannot  be  attached  by  a  creditor 
of  the  purchaser.  If  the  consignee  is  insolvent  he 
will  not  be  allowed  to  assign  the  goods  to  another 
with  instructions  to  receive  them  for  him  and  thus 
defeat  the  creditors  who  wish  to  attach  them.' 

Goods  stored  in  a  warehouse  are  subject  to  the  ware- 
housemen's lien  and  cannot  be  attached  by  the  cred- 
itors of  the  owner.*  More  generally,  whenever  a 
bailee  or  keeper  of  goods  has  a  right  to  retain  them 

«  I  Shinn,   §   SS- 

*  I  Shinn,   §   59. 

*Sealfield  v.  Bell,  14  Mass.,  40. 

«  Fiist  Nat.  Bank  v.  Hancbett,  126  lU..  490- 


136    BUSINESS  MAN'S  LEGAL  ADVISER 

in  his  possession  until  his  lien  is  satisfied,  they  cannot 
be  attached  by  the  bailee's  creditors.  If  he  has  the 
right  of  possession  for  a  specified  time,  the  goods  cannot 
be  attached  until  the  expiration  of  that  period.  But 
the  bailee's  interest  in  them,  if  having  one,  may  be 
attached.  And  the  same  rule  applies  to  pledged 
property. 

(g)  Property  held  by  an  assignee  under  a  valid  as- 
signment for  the  benefit  of  creditors  cannot  be 
attached  or  garnished.  Says  Shinn:  "Property 
assigned  for  the  payment  of  debts  may  be  at- 
tached by  a  dissenting  creditor  and  be  effective  as  to 
the  surplus  after  the  satisfaction  of  the  demands  of 
the  creditors  who  have  not  dissented.  And  when 
any  property  is  assigned  as  security  for  a  debt,  any 
residue  remaining  in  the  hands  of  the  assignee  after 
the  debt  is  satisfied  may  be  attached,  because  such  an 
assignment  leaves  the  assignor  the  owner  of  the  res- 
idue. Even  a  verbal  assignment  made  in  good  faith, 
and  for  a  valuable  and  adequate  consideration,  will 
transfer  an  interest  in  an  account  so  as  to  be  effective 
against  a  subsequent  proceeding  in  garnishment." 

(Jt)  Personal  property  in  the  law's  custody  cannot 
be  attached.  "  Money  in  the  hands  of  an  officer  can- 
not be  reached,  because  it  does  not  become  the  prop- 
erty of  the  debtor  until  it  is  paid  over  to  him.  Neither 
is  it  a  debt  due  to  the  creditor  in  the  pending 
suit  rendering  the  officer  liable  as  a  garnishee  in  at- 
tachment. But  a  balance  of  money  in  the  hands  of  a 
sheriff  held,  not  in  his  official  character,  but  in  his 

,      1  I  Sbinn,    68. 


MODES  OF  ENTIRE  OWNERSHIP       137 

private  character,  is  attachable.  And  money  in  the 
hands  of  a  clerk  of  the  court  in  his  oflficial  character 
is  not  subject  to  attachment,  but  if  it  be  held  by  him 
in  his  private  character,  it  is  not  exempt  from  seizure 
thereunder." ' 

(i)  The  interest  of  a  partner  in  the  firm  assets  can 
be  seized  and  sold  and,  after  paying  the  firm  indebted- 
ness, his  remaining  interest  can  be  taken  to  satisfy 
his  individual  creditors.  Shinn  says  that  "there  is 
a  small  class  of  cases  which  holds  that  the  goods  of  the 
partnership  cannot  be  seized  on  an  execution  or  at- 
tachment for  the  individual  debt  of  the  partner. 
And  the  creditor  can  have  only  the  right  of  his  debts 
in  the  surplus  after  the  partnership  debts  are  paid, 
and  that  this  does  not  entitle  the  creditor,  nor  the 
ofl&cer  seizing  his  interest,  to  the  exclusive  possession 
of  the  partnership  property. " ' 

5.  With  respect  to  the  attachment  of  land,  whatever 
may  be  taken  by  execution,  in  other  language  by  legal 
action,  to  satisfy  a  debt  may  be  taken  for  that  purpose. 
What,  however,  is  meant  by  land  in  this  relation? 
Shinn  says  that  in  California  the  term  embraces 
every  interest  in  land,  but  in  many  states  the^term  has 
a  narrower  meaning.  For  example,  a  widow's  interest 
in  land  belonging  to  her  husband  is]  not  always  in- 
cluded. The  attaching  oflicer  does  not  take  posses- 
sion of  real  estate  as  he  does  personal  property,  but 
makes  a  proper  written  notice  in  the  place  where  the 
record  of  its  title  is  preserved. 

>  I  Shinn,  §  7. 
«Ibid.  S  80. 


138     BUSINESS  MAN'S  LEGAL  ADVISER 

In  all  cases  an  attaching  creditor  gets  no  greater 
rights  than  the  debtor  had  at  the  time  of  the  seizure 
of  his  property,  therefore  if  he  cannot  take  possession 
of  it,  his  creditor  cannot.' 

6.  We  now  come  to  property  exempt  from  attach- 
ment, which  rests  entirely  on  statute.  The  tendency 
is  to  increase  exemptions;  and  the  statutes  granting 
them  are  liberally  construed. 

(a)  The  statutes  of  most  states  specifically  exempt 
articles  of  food,  also  food  animals.  A  statute  exempt- 
ing a  quantity  of  wheat  does  not  exempt  a  barrel 
of  flour  purchased  by  the  debtor;  a  statute  exempting 
one  hog  and  the  pork  thereof,  does  not  cover  both  the 
hog  and  the  pork  of  another. 

(b)  Another  exemption  is  wearing  apparel,  which 
includes  suitable  apparel  for  labour  with  an  extra  suit 
for  Simday  and  an  overcoat. 

(c)  Household  furniture  is  another  exemption,  also 
that  used  by  a  lawyer  in  his  office.  In  Connecticut 
a  widow  and  daughter,  who  had  kept  a  boarding  house, 
took  a  furnished  house  in  New  York,  intending  to 
return  and  resume  business.  In  the  meantime  she 
stored  her  furniture,  which  was  attached.  The  court 
held  (i)  that  the  furniture,  if  otherwise  exempt,  was 
not  attachable  by  storing  it,  (2)  that  it  was  not  exempt 
as  a  necessity  for  the  use  of  her  boarders,  (3)  that  the 
term  family  was  not  limited  to  the  mother  and  daugh- 
ter but,  as  she  was  keeping  boarders,  might  properly 
include  a  servant  or  a  dependent  sister  who  was  living 
with  the  family,  (4)  that  in  determining  what  was 

'Adoue  V.  Seligson,  54  Tex.,  5g3. 


MODES  OF  ENTIRE  OWNERSHIP      139 

necessary  household  furniture  her  occupation  might 
properly  be  considered;  if  more  was  required  for  her 
personal  use  because  she  kept  boarders  an  additional 
bureau,  for  example,  was  covered  by  the  statute.'  A 
cooking  stove  is  exempt. 

The  officer  who  attaches  household  furniture  must 
leave  articles  amounting  in  the  aggregate  to  the 
statutory  value.  "And  where  articles  of  household 
furniture  which  are  exempt  from  attachment  are 
intermingled  with  other  similar  articles  not  so  exempt 
in  the  house  of  the  owner  this  is  not  such  a  confusion 
of  goods  as  will  justify  an  officer  in  attaching  all 
of  them  on  failure  of  the  owner  to  claim  any  of  the 
articles  as  exempt. "  ' 

(d)  Beasts  of  husbandry  and  domestic  animals 
which  constitute  the  support  of  the  debtor  or  his 
family  are  exempted  in  many  states.  An  animal 
need  not  be  in  actual  use;  if  kept  with  the  honest 
intention  of  using  it,  the  law  is  observed.  A  debtor 
who  refuses  to  elect  whether  he  will  retain  a  horse 
or  pair  of  oxen  as  the  exempt  team  can  not  complain 
because  the  oxen  were  attached  and  sold.  Likewise 
if  a  cow  is  exempt  the  debtor  cannot  complain 
about  the  officer's  selection  if  he  have  more  than  one. 
And  if  the  debtor  owns  neither  oxen  nor  horses  a  colt 
that  he  may  have  is  exempt. 

(e)  The  statutes  in  all  the  states  probably  exempt 
the  tools  of  a  mechanic  used  in  his  trade.  Shinn  says 
that  "working  tools  necessary  for  his  usual  occupation 

'  Weed  V.  Dayton,  40  Conn.,  393, 
>  X  Shion  §  loa 


^14©     BUSINESS  MAN'S  LEGAL  ADVISER 

should  be  construed  to  include  not  only  all  tools  which 
are  indispensably  necessary  to  the  mechanic,  or  even 
such  as  are  in  use  by  individuals  of  the  same  craft,  but 
also  such  as  the  mechanic  has  adopted  to  ease  and 
diminish  his  labour,  and  not  only  his  working  tools, 
but  such  as  he  used  and  has  set  apart  for  the 
advantageous  prosecution  of  his  business." '  And 
if  one  is  engaged  in  two  branches  of  business  he 
may  select  tools  used  in  both  trades,  but  the  value  of 
all  must  not  exceed  the  exempted  value  fixed  by  the 
statute.*  The  debtor  must  be  a  mechanic  as  dis- 
tinguished from  a  manufacturer.  But  in  Massa- 
chusetts machines  of  a  simple  construction,  moved 
by  the  hand  or  foot  and  used  in  the  manufacture  of 
boots,  are  exempt  from  attachment  even  though 
the  owner  employed  a  number  of  men  under  him  in 
carrying  on  his  business  by  whom  the  machines  are 
generally  used.'  Lastly,  the  temporary  suspension 
of  a  mechanic's  exercise  of  his  trade  does  not  render 
his  tools  liable  to  attachment. 

(/■)  To  the  foregoing  exemptions  others  will  now  be 
given.  A  barber's  chair  and  foot  rest,  presses,  vats 
and  knives  used  in  cheese-making,  a  grindstone  used 
on  a  farm,  a  sled  for  drawing  timber  to  market,  a 
shovel  and  other  tools  used  by  a  debtor  in  tilling  his 
land,  a  violin  used  by  a  musician;  apparatus  used  by 
a  teacher  for  teaching,  the  cart  or  truck  of  a  peddler, 
the  wagon,  horse  and  harness  of  a  physician  if  needed 
by  him  in  practising  his  profession,  but  not  a  wagon 

'  Shinn,  §  103. 

'  Barker  v.  Willis,  123  Mass.,  194. 

•  Daniels  v.  Haywards,  5  Allen,  43. 


MODES  OF  ENTIRE  OWNERSHIP      141^ 

used  for  convenience  or  pleasure,  nor  a  wagon  with 
patent  couplings  attached  used  by  the  owner  in  selling 
patent  couplings,  nor  is  the  stock  of  goods,  scales  and 
measures,  horses,  wagon,  and  harness  of  a  country 
shop  keeper. 

(g)  Most  states  provide  for  a  "homestead"  exemp- 
tion of  land  with  a  fixed  valuation.  This  land  is 
for  the  debtor  and  his  family.  A  levy  by  attachment 
on  land  previous  to  making  a  home  of  it  will  be  effec- 
tive. But  if  two  parcels  of  land  are  apart,  though  used 
for  the  same  common  purpose,  both  are  exempt.' 
Building  materials  that  are  to  be  used  for  repairing  the 
homesteader's  dwelling  house  which  have  been  depos- 
ited on  his  land  are  also  exempt. 

Again,  if  the  homestead  has  been  changed  into  money 
which  is  kept  as  a  separate  homestead  fund,  it  cannot 
be  attached,  even  when  deposited  in  a  bank.  Money 
paid  for  a  right  of  way  over  a  homestead  by  a  railway 
company  is  exempt.  But  a  homestead  does  not  extend 
to  new  land  exchanged  for  the  old.  Insurance  money 
received  from  the  burning  of  the  house,  barn  or  other 
building  is  exempt  for  a  reasonable  time.' 

7.  Again,  the  question  has  been  raised,  who  can 
w'laim  the  exemption?  The  head  of  a  family,  and  if 
the  husband  is  temporarily  absent,  the  wife  may  claim 
the  exemption  for  him.  A  married  woman  aban- 
doned by  her  husband,  but  temporarily  supporting 
her  child,  is  the  head  of  a  family.  The  family  of  an 
absconding  debtor  only  also  benefit  by  the  exemption.' 

*  Brooks  V.  Chatham,  57  Tex.,  31. 

•  Cooney  v.  Cooney,  65  Barb.,  5*4. 

iSbino,  S  no;  fionnel  v.  Dunn,  29  N.  J.  Law,  435. 


142     BUSINESS  MAN'S  LEGAL  ADVISER 

8.  The  term  householder  is  by  some  statutes  used 
in  the  same  sense,  as  "head  of  family"  in  others.  A 
householder  is  one  on  whom  rests  the  duty  of  support- 
ing the  members  of  his  family  or  household.  The 
head  of  the  family  also  must  reside  with  the  members, 
for  a  statute  exempting  property  for  the  use  of  every 
family  in  the  state  does  not  cover  the  property  of  one 
having  a  family  in  another  state.* 

9.  Lastly,  the  debtor  may  waive  or  give  up  his  ex- 
emption by  a  great  variety  of  acts.  But  the  exemption 
of  his  wages  from  attachment  and  exemption  cannot 
be  waived.'  The  reason  is,  the  exemption  is  made  for 
the  benefit  of  his  family. 

10.  Garnishment  is  another  form  of  attachment 
in  which  "the  garnishee  is  notified  or  warned  not  to 
pay  the  money  or  other  effects  in  his  possession  to  the 
owner,  but  to  hold  them  until  the  court  shall  decide 
whether  they  ought  to  be  paid  to  him  or  to  some  other 
person.  The  garnishee,  therefore,  is  a  stockholder  or 
custodian  of  the  funds  or  property  in  his  hands  which 
he  must  hold  under  the  proper  disposition  of  the  court. 
He  has  no  pecuniary  interest  in  the  matter,  no  costs 
to  pay  and  none  to  save.  His  business  is  to  suffer 
the  law  to  have  its  course  between  the  litigants,  and 
he  is  not  permitted  to  do  anything  to  change  his 
position  toward  either.  He  is  only  bound  to  dis- 
close the  truth  respecting  others."  The  proceeding 
is  founded  wholly  on  statute. 

Some  statutes  require  that  the  debt  must  be  due 

•Allen  V.  Manasse,  4  Ala.,  554. 
*Shum,  §  114. 


MODES  OF  ENTIRE  OWNERSHIP      143 

and  payable  at  the  present  time  in  order  that  it 
maybe  made  the  subject  of  a  proceeding  in  garnish- 
ment, while  others  permit  a  debt  which  is  to  become 
due  in  the  future  to  be  so  made  liable,  but  it  is  a  uni- 
versal requirement  that  it  must  be  an  absolute  existing 
debt,  even  though  the  period  of  its  payment  may  not 
have  arrived/  It  therefore  follows  that  a  contingent 
or  uncertain  debt  cannot  be  garnished. 

11.  An  inhabitant  in  another  state  is  not  charge- 
able as  a  garnishee,  if  he  has  come  for  a  temporary 
purpose.  When,  however,  the  garnishee  is  a  resident 
of  the  state,  the  fact  that  the  principal  debtor  is  a 
non-resident  will  not  affect  the  validity  of  the  attach- 
ment, because  attachments  are  permitted  against 
non-resident  debtors.  If  the  garnishee  and  the 
principal  debtor  both  reside  without  the  state,  and 
the  debt  is  payable  elsewhere,  the  garnishment  will 
not  be  effective.  A  corporation  may  be  garnished, 
and  if  doing  business  in  another  state  it  may  be  gar- 
nished there  whenever  it  may  be  sued  there  like  any 
other  corporation.  A  foreign  corporation  which  is 
casually  within  the  state  by  the  presence  of  an  officer 
cannot  be  garnished. 

12.  Again,  no  foreign  corporation  can  be  made 
liable  as  a  garnishee  so  long  as  the  amount  of  its  in- 
debtedness is  uncertain.  This  rule  is  often  applied 
to  insurance  companies  which  cannot  be  garnished 
until  the  amount  of  the  loss  has  been  fixed.*  Nor 
can  the  money  of  a  corporation  set  aside  as  a  sink- 
ing fund  for  the  payment  of  defined  debts,  of  bonds 

I  Shinn,  {  847. 

a  Bucklin  t.  PoweB,  60  N.  H^  It. 


144     BUSINESS  MAN'S  LEGAL  ADVISER 

pledged  as  collateral  security,  be  garnished.  Nor  can 
a  corporation  be  held  liable  as  a  garnishee  for  stock 
owned  by  the  principal  debtor.  This  is  based 
on  the  reason  that  the  stock  is  not  a  debt  due  to  him 
from  the  corporation.  By  the  statutes  of  many  states, 
however,  shares  of  corporate  stock  may  be  attached. 
"Regarding  the  possibility  of  holding  a  subscriber 
for  stock  in  the  corporation  as  a  garnishee  when  one 
has  subscribed  for  stock,  and  the  money  for  the  price 
is  due  to  the  corporation  at  a  fixed  time  the  subscriber 
may  be  garnished  by  a  creditor  of  the  corporation."  * 
13.  Public  policy  prevents  the  application  of 
the  law  of  garnishment  to  municipal  corporations, 
but  in  some  places  it  can  be  done.  "The  general 
rule,"  says  Shinn,  "  that  a  municipal  corporation 
may  not  be  held  as  a  garnishee  for  a  debt  due  by 
it  to  a  third  person,  has  been  applied  where  it  was 
sought  to  subject  an  unpaid  balance  due  to  con- 
tractors and  material  men  on  school  houses  and 
other  public  buildings  for  grading  and  paving  and 
for  other  contracts  of  employment.  The  rule  has 
been  more  frequently  applied,  however,  where  it 
has  been  sought  to  secure  parts  of  the  salary  due 
from  a  municipal  corporation  to  its  officers.  By  an 
application  of  the  rule,  the  salaries  or  earnings  of 
teachers  of  public  schools  cannot  be  secured  by 
process  of  garnishment  seized  upon  the  corpora- 
tion or  board  owing  them.  In  the  same  manner 
fees  due  to  jurors  have  been  beyond  the  reach  of 
garnishment  process."  *    "Neither  the  board  of  trus- 

>  2  Shinn,  §  870. 

I  nud,  i  874. 


MODES  OF  ENTIRE  OWNERSHIP       145 

tees  or  directors,  nor  the  treasurer  of  the  board,  can 
be  made  a  garnishee  to  secure  the  application  of  the 
wages  of  a  teacher  to  satisfy  his  debts/  A  public 
officer  is  beyond  the  reach  of  garnishment  while  he 
holds  his  funds  in  his  official  capacity.  Money  or 
property  which  has  been  obtained  by  an  officer  on 
execution  or  other  legal  process  is  in  custody  of  the 
law  and  cannot  be  taken  by  another  writ  while  it  is 
thus  held."  The  rule  is  very  broad  and  applies  to 
almost  every  kind  of  offices. 

14.  An  executor  or  administrator  is  not  by  the 
common  law  liable  officially  to  garnishment  in  a  suit 
by  a  creditor  of  the  estate,  nor  by  a  legatee  or  dis- 
tributee. Nor  is  he  an  agent,  factor,  attorney,  or 
trustee  of  a  creditor,  because  he  derives  all  his  authority 
from  a  different  source.  By  statute  in  many  states 
they  may  be  garnished  by  creditors,  legatees  or  dis- 
tributees. A  guardian  is  generally  governed  by  the 
same  rule  as  an  executor  or  administrator. 

15.  A  creditor  may  by  garnishment  secure  the  money 
or  property  belonging  to  a  partnership  which  is  in  the 
possession  or  control  of  its  debtor.  The  individual 
members  are  treated  as  one  individual,  and  the  part- 
nership creditors  are  liable  in  the  same  manner  as  an 
individual's  creditors. 

16.  When  a  debt  is  owing  by  several  persons  jointly 
they  must  all  be  joined  as  garnishees,  for  the  process 
will  not  generally  reach  a  debt  due  from  joint  debtor 
by  service  on  one  alone.  "If  two  or  more  persons  are 
not  jointly  indebted  to  the  principal  defendant  they 

>  Trustees  of  Schools  v.  Latman.  13  HI.,  37. 


146     BUSINESS  MAN'S  LEGAL  ADVISER 

cannot  generally  be  jointly  charged  as  garnishees  in 
one  writ  of  garnishment.  If  several  are  distinctly 
indebted  and  have  distinct  interests  they  must  be 
distinctly  charged,  for  they  cannot  be  jointly  charged 
as  having  jointly  in  their  hands  the  effects  of  the 
principal  debtor."  * 

17.  With  respect  to  wages,  as  those  of  a  minor  belong 
to  the  father,  they  may  be  secured  by  garnishment; 
if  a  minor  has  had  his  time  given  to  him  by  his  father, 
his  earnings  cannot  be  garnished  for  his  father's  in- 
debtedness. The  garnishing  of  an  employee's  wages 
is  a  thing  of  common  occurrence,  which  may  be  done 
unless  exempted  by  statute.  In  many  states  a  speci- 
fied sum  is  exempted.  They  must  have  been  earned 
and  have  become  payable  before  they  can  be  gar- 
nished, consequently  wages  paid  in  advance  cannot  be 
garnished,  though  in  some  states  the  garnishing  of 
future  earnings  is  authorised  by  statute.*  Again,  when 
an  employer  has  a  lien  on  the  wages  of  an  employee 
which  by  agreement  is  to  be  paid  from  his  earnings, 
his  wages  cannot  be  garnished  imtil  this  is  satisfied.' 
And  if  a  contractor  does  not  complete  his  contract, 
whatever  he  may  have  earned  cannot  be  garnished. 
A  labourer  when  employed  may  lawfully  assign  his 
future  earnings  to  another  creditor  if  the  employer 
will  agree  to  pay  the  wages  accordingly.  Of  course, 
the  assignment  must  be  without  fraud  and  in  all  cases 
must  conform  to  the  statute.  When  the  wages  are 
payable  in  non-negotiable  orders  or  certificates,  they 

>  2  Shinn,  §!903. 

'  2  Shinn,  §  038.  , 

•Thome  v.  Matthews,  s  Cush.,  544- 


MODES  OF  ENiIRE  OWNERSHIP      147 

may  be  sold  by  the  employee  before  they  are  received; 
and  any  acceptance  of  the  assignee  to  whom  they  are 
to  be  paid  will  relieve  the  payor  from  liability  to 
garnishment.  And  any  surplus  over  the  amount  as- 
signed by  the  accepted  order  is  liable  to  garnishment 
of  the  employer  by  the  labourer's  creditor.' 

The  wages  of  a  labourer  which  are  exempted  by  stat- 
ute are  such  only  as  are  earned  by  the  hands  and  labour 
of  the  individual  himself,  and  of  his  family  under  his 
direction,  and  do  not  extend  to  what  is  earned  by 
him  as  a  contractor  or  received  by  him  as  the  superin- 
tendent or  master  of  other  labourers.  Therefore  a 
master  carpenterwho  supervises  the  labour  of  the  hands 
employed  by  him  in  building  a  house  is  not  exempt, 
neither  is  the  boss  of  a  department  who  employs  and 
discharges  the  hands,  nor  is  the  conductor  of  a  railway 
train  who  has  full  charge  of  the  conduct  and  manage- 
ment of  the  train;  nor  is  a  blacksmith  who  is  the  pro- 
prietor of  the  shop.  On  the  other  hand  the  wages  of  a 
forwarding  clerk  of  a  railway  company  are  exempt, 
also  those  of  a  locomotive  engineer,  of  a  school  teacher, 
of  a  miner,  who  himself  works  in  a  coal  mine  at  so 
much  per  ton  although  he  has  charge  of  a  chamber 
with  two  hands  under  him,  of  seamen  except  in  Massa- 
chusetts. Even  in  that  state  the  voyage  must  be 
completed  before  their  wages  can  be  garnished. 

18.  A  depositor's  creditor  can  acquire  a  lien  to  his 
deposit  by  garnishment.  The  bank  must  respect  the 
process  and  can  neither  apply  the  fund  attached  to 
the  payment  of  any  debt  from  the  depositor  to  itself 

1  Macombei  v.  Doone,  a  Allen. 


148     BUSINESS  MAN'S  LEGAL  ADVISER 

nor  to  anyone  else.  Nor  is  his  creditor,  whether  in- 
solvent or  otherwise  at  the  time  of  the  attachment, 
of  any  concern  to  the  bank.  Whenever,  therefore,  the 
institution  is  liable  to  the  depositor  his  creditor  can 
acquire  a  lien  on  his  deposit  by  attaching  it.  Further- 
more, having  once  acquired  a  lien,  by  no  device  of  the 
debtor  or  bank  can  it  be  destroyed  or  impaired. 

As  the  person  who  makes  the  deposit  is  usually 
not  important,  a  deposit  made  by  one  for  the  benefit 
of  another  can  be  attached  by  a  creditor  of  the  de- 
positor. For  the  same  reason  the  source  of  the  money 
is  not  important  if  at  the  time  of  making  the  deposit 
it  belonged  to  the  depositor.  Borrowed  money,  there- 
fore, can  be  attached  like  any  other. 

While  a  deposit  belonging  to  the  depositor  is  subject 
to  attachment,  a  check,  draft,  note  or  other  instru- 
ment deposited  by  him  that  has  not  been  collected 
nor  credited  as  cash  with  the  right  to  draw  against 
it  cannot  be  attached. 

As  the  depositor  himself  would  have  no  claim  against 
the  bank  until  its  collection,  surely  no  creditor  of  his 
would  have  a  superior  claim.  For  the  same  reason 
a  creditor  cannot  attach  a  check  drawn  on  the  same 
bank,  or  on  another,  for  which  a  credit  has  not  been 
given  to  the  depositor.  A  different  rule,  however, 
applies  to  a  check  that  has  been  certified,  for  this  is 
essentially  money  and  may  be  attached  by  the  depos- 
itor's creditor.* 

19.  Again,  a  bank  that  cashes  drafts  accompanied 
by  bills  of  lading  becomes  the  owner  of  the  several 

I  3  Bolles  on  Modem  Banking,  p.  778.  « 


MODES  OF  ENTIRE  OWNERSHIP       149 

instruments  and  goods  covered  by  them,  which  cannot 
be  attached  by  any  creditor  of  the  drawer.  The  bank 
thereby  acquires  a  special  property  in  the  goods  which 
it  retains  until  the  draft  is  accepted  or  paid. 

20.  A  deposit  of  a  public  fund  in  the  officer's  in- 
dividual name  may  be  garnished  and  taken  for  his 
debt.  No  proof  appearing  of  its  public  character  to 
justify  the  bank  in  paying  the  money  to  the  attaching 
creditor,  it  must  act  honestly  and  without  knowledge 
of  its  true  ownership.  When  thus  acting  its  course 
is  safe  from  attack  by  the  depositor,  his  successor  or 
any  other  interested  party. 

21.  Money  and  other  securities  stored  in  the  vaults 
of  safety  deposit  companies  cannot  be  taken  save  by 
special  statute,  because  they  are  not  debts  in  any  sense 
due  from  these  institutions.  The  safety  deposit  com- 
panies are  purely  bailees  or  keepers. 

22.  Collateral  securities  held  by  a  bank  as  security 
for  a  loan  may  be  attached  subject  to  its  rights  and 
after  the  proper  sale  of  them,  should  a  surplus  remain, 
this  may  be  taken  by  the  attaching  creditor,  but  the 
bank's  rights  are  paramount.  A  bank,  therefore, 
that  discounts  a  draft  secured  by  a  bill  of  lading  ac- 
quires a  title  to  the  merchandise  which  is  superior 
to  that  of  any  attaching  creditor  of  the  shipper. 

23.  A  deposit  that  has  been  assigned  in  the  general 
assignment  of  the  owner  cannot  be  garnished  by  one 
of  his  creditors. 


CHAPTER  IV 

MODES  OF  LIMITED  OWNERSHIP 

§  I.  By  Tenant  or  Occupant  for  Life 

1.  Mode  of  creating  an  estate  for  life. 

2.  For  whom  it  is  created. 

3.  Rights  and  duties  of  life-owner:  , 

a. —  Improvements, 

b. —  Payment  of  interest  on  mortgages, 

c. —  Taxes. 

4.  Relation  between  life- tenant  and  reversioner: 

a. —  Rents, 
b. —  Crops, 
c. —  Effect  of  purchase  of  outstanding  title  by 

life-occupant, 
d. —  Sale  of  interest  by  life-occupant, 
e. —  Valuation  of  life-occupant's  interest, 

5.  Waste. 

6.  How  land  must  be  improved: 

a. — Repairs, 
b. —  Insurance. 

7.  Division  of  income  from  stock  between  life-occu- 

pant and  reversioner. 

8.  Remedies  for  wrongs  committed  by  life-owner. 

ISO 


MODES  OF  LIMITED  OWNERSHIP     151 

1.  Next  to  absolute  or  entire  ownership  may  be 
mentioned  ownership  for  life.  Such  ownership  is 
often  created  by  will,  the  testator  giving  the  use  of 
his  land  to  a  son  during  his  lifetime,  and,  after  his 
death,  then  to  the  son's  child  or  some  other  person. 
This  is  the  most  usual  way  in  which  estates  for  life 
are  created.  They  are  very  common,  though  perhaps 
less  so  than  formerly.  The  old  system  of  entails,  as 
they  are  called,  which  still  prevails  in  England  where- 
by different  interests  in  land  are  carved  out  for  the 
piupose  of  perpetuating  the  family  name  and  grandeur, 
has  never  received  much  countenance  in  America. 
Furthermore,  the  wealth  invested  in  land  is  forming 
a  constantly  diminishing  portion  of  the  entire  wealth 
of  the  country,  and  consequently  there  is  a  weaker 
desire  to  entail  or  perpetuate  interests  in  land  than 
formerly,  when  it  constituted  by  far  the  largest  part  of 
a  person's  wealth. 

2.  Nevertheless,  estates  for  life  are  constantly 
created  by  will  for  the  especial  benefit  of  the  children 
of  the  testator;  and  the  principal  modern  questions 
that  arise  relate  to  the  mode  of  using  the  land  thus 
inherited.  Besides  these  are  other  questions  pertain- 
ing to  the  validity  of  such  estates.  As  the  answers  to 
the  second  series  of  questions  depend  largely  on  the 
construction  of  the  instrument  creating  them,  they  need 
not  be  considered  here.* 

3.  What  are  the  rights  and  duties  of  an  owner  of  a 
life-estate  ? 

(a)  For  improvements  made  on  the  land  he  cannot 

*  See  Section  3  on  Wills. 


152     BUSINESS  MAN'S  LEGAL  ADVISER 

claim  compensation  from  the  person  who  is  to  receive 
it  after  him,  usually  called  the  reversioner  or  remainder- 
man. On  the  other  hand,  he  is  under  no  obligation  to 
do  more  than  to  keep  the  premises  in  repair.  He  may 
complete,  at  the  expense  of  the  testator's  estate,  a 
mansion-house  which  was  begun  by  the  testator.  The 
expense  of  putting  the  house  into  a  tenantable  condi- 
tion is  a  charge  that  must  be  borne  by  the  estate  of  the 
testator,  not  by  the  person  who  is  to  become  the  pos- 
sessor for  life.  But,  having  once  come  into  possession, 
after  the  completion  of  repairs,  it  is  his  duty  to  main- 
tain them  afterward. 

(ft)  Another  important  duty  is  to  pay  the  interest 
on  any  mortgage  or  other  encumbrance  that  may  exist 
on  the  life-estate.  He  is  not  required  to  pay  the  prin- 
cipal, however,  and  should  he  be  obliged  to  do  so  in 
ofder  to  retain  his  life-estate,  he  would  become  a 
creditor  of  the  testator's  estate.  On  the  other  hand, 
the  voluntary  purchase  of  a  mortgage  on  the  estate, 
the  law  regards  as  done  for  the  benefit  of  the  reversioner 
as  well  as  himself,  and  the  amount  must  be  divided 
in  some  equitable  manner  between  them. 

(c)  With  respect  to  taxes,  the  life-occupant  must  pay 
them,  as  they  are  an  annual  charge  and  do  not  affect 
the  reversioner.  An  assessment  for  permanent  bene- 
fits is  like  a  mortgage,  and,  as  the  land  is  thereby  per- 
manently increased  in  value,  the  expense  must  be 
borne  by  both  the  possessor  for  life  and  the  reversioner. 
Should  the  assessment  call  for  the  payment  of  a  given 
sum  annually,  like  the  interest  of  a  mortgage,  it  would 
be  the  duty  of  the  life-owner  to  pay  the  annual  sum 


MODES  OF  LIMITED  OWNERSHIP      153 

accruing,  and  the  remainder-man  or  reversioner  the 
principal. 

The  rule,  perhaps,  is  without  qualification  that  the 
occupant  for  life  must  pay  all  the  taxes  assessed  on  the 
estate.  If,  therefore,  he  neglects  to  do  this,  becomes 
bankrupt,  and  a  receiver  of  his  estate  is  appointed,  he 
may  take  so  much  of  the  rent  accruing  from  the  use 
of  the  land  as  may  be  needed  to  pay  the  taxes  due  to 
the  public.  In  Ohio  a  life-occupant  who  fails  to  pay 
the  taxes  forfeits  the  estate  to  the  reversioner  or  re- 
mainder-man. This  effect  of  his  neglect  in  that  state 
is  by  virtue  of  a  statute. 

The  life-occupant  cannot  take  advantage  of  his  own 
wrong  in  neglecting  to  pay  taxes,  to  buy  property  at 
a  tax  sale  and  thus  defeat  the  estate  of  a  remainder- 
man or  reversioner.  As  between  these  persons,  the 
purchase  simply  has  the  effect  of  discharging  the  taxes. 
Furthermore,  though  the  life-estate  and  remainder 
be  destroyed  by  a  valid  tax  sale  to  a  stranger,  the  re- 
mainder-man still  has  a  claim  against  the  life-occupant 
for  his  neglect  to  perform  his  duty.  On  the  other  hand, 
the  remainder-man  may  purchase  at  a  tax  sale  and 
acquire  a  good  title  against  the  life-occupant  for  the 
reason  that  he  owed  no  duty  to  him  to  pay  the  demands 
of  the  state. 

4.  The  position  of  the  life-occupant  is  deemed  to  be 
opposed  to  his  reversioner.  Consequently,  his  dis- 
position, for  any  reason,  does  not  affect  the  rights  of 
the  reversioner.  He  may  enter  or  recover  possession 
within  the  period  fixed  by  law  after  the  death  of  the 
life-occupant,  without  regard  to  the  length  of  time  he 


154     BUSINESS  MAN'S  LEGAL  ADVISER 

may  have  been  dispossessed.  Again,  one  who  enters  on 
the  land  of  the  life-occupant,  by  virtue  of  an  agreement 
with  him,  and  remains  there  after  his  death,  is  trans- 
formed into  a  trespasser,  for  the  life-occupant  can  do 
no  act  which  affects  the  title  or  interests  of  the  re- 
versioner. 

(a)  All  the  income  or  profits  that  accrue  while  the 
life-estate  endures  belong  to  the  life-occupant,  and  pass 
on  his  death  to  his  representatives  unless  he  has  dis- 
posed of  them  during  his  lifetime.  This  includes  the 
natural  increase  in  live  stock,  interest  on  money, 
rents;  but  should  the  life-occupant  lease  the  land  and 
die  before  its  expiration,  the  entire  rent  would  belong 
to  the  reversioner.  This  is  the  rule  of  common  law, 
founded  on  the  principle  that  the  rent  cannot  be 
divided.  This  rule  has  given  rise  to  much  controversy, 
and  is  so  contrary  to  justice  that,  in  many  states, 
it  has  been  set  aside  by  statutory  or  judicial  action. 
Therefore  it  may  be  said  that,  in  most  states  the  rent 
may  be  apportioned  or  divided  in  a  case  of  that  kind 
between  the  legal  representative '  of  the  life-occupant 
and  the  reversioner.  In  a  few  states,  however,  the  old 
rule  still  prevails. 

(b)  Another  question  growing  out  of  the  life-occu- 
pancy of  land  is,  who  are  entitled  to  the  crops  planted 
before  and  maturing  after  the  termination  of  the  occu- 
pant's estate?  The  general  principle  is  that  annual 
crops  belong  to  the  representative  of  the  life-occupant 
but,  in  some  states,  they  descend  to  his  heirs.  In 
other  language,  they  go  to  the  executor  or  adminis- 

*  By  legal  representative  is  meant  his  executor  or  administrator. 


MODES  OF  LIMITED  OWNERSHIP     155 

trator  because  they  are  a  part  of  the  occupant's 
personal  estate,  and  do  not  belong  to  his  heirs.  The 
right  to  them  carries  also  the  right  of  entering  the  land, 
cultivating  the  crops,  and  harvesting  them  when  they 
are  ripe. 

Another  question  closely  related  to  this  is,  what 
crops  are  annual  within  the  meaning  of  this  rule?  It 
may  seem  to  the  reader  as  if  such  a  question  is  too 
plain  for  discussion,  but  an  attempt  to  answer  it  re- 
veals difficulties.  Among  the  annual  crops  are  com, 
beans,  hemp,  flax,  melons,  potatoes,  grasses,  and  the 
like,  which  are  annually  renewed.  But  what  shall  we 
say  of  crops  that  are  grown  on  permanent  roots?  The 
law  says  that  these,  too,  may  be  included;  also  turpen- 
tine taken  from  trees,  because  the  produce  is  gathered 
annually.  On  the  other  hand,  clover  and  other  grasses 
which  endure  for  more  than  a  year  are  not  included, 
nor  the  fruits  of  trees  growing  on  the  land,  even  though 
planted  by  the  life-occupant.  To  this  rule  an  excep- 
tion is  made  of  trees  and  shrubs  planted  simply  for 
sale  by  gardeners  and  nurserymen  who  are  life-occu- 
pants, as  this  is  their  sole  object  in  planting  them. 

The  right  to  annual  crops  is  not  an  incident  simply 
to  life-occupants  alone,  but  to  the  occupants  of  all 
estates  of  uncertain  duration.  If  a  tenant,  knowing 
that  his  estate  will  end  before  he  can  gather  his  crops, 
and  thus  knowing  plants  them,  his  folly  is  his  own,  and 
his  successor  will  be  the  gainer. 

Again,  the  estate  must  be  determined  by  the  death 
of  the  occupant  or  by  some  act  other  than  his  own, 
for,  by  a  voluntary  abandonment  of  the  land,  he  for- 


156     BUSINESS  MAN'S  LEGAL  ADVISER 

feits  his  right  to  claim  the  crops  growing  thereon. 
Thus,  should  a  doweress  marry  and  lose  her  right 
of  dower,  the  crops  growing  on  her  land  would  also  be 
lost. 

This  right  to  the  crops  is  not  limited  to  the  original 
occupant  for  life,  unless  he  is  restricted  from  under- 
letting his  estate.  His  assignee  or  grantee  possesses 
the  same  rights  as  himself,  and,  in  some  cases,  may 
claim  the  crops  when  the  original  possessor  could  not. 
Thus,  it  is  said  that,  if  a  widow  should,  during  widow- 
hood, underlet  her  land  and  then  marry,  thereby  losing 
her  own  right  to  the  annual  crops,  her  tenant  would 
not,  because  he  had  kept  within  the  law. 

(c)  If  the  life  occupant  purchases  an  outstanding 
title  or  interest,  the  law  requires  him  to  share  the 
benefit  with  the  remainder-man  or  reversioner,  if  the 
latter  will  contribute  his  proportion  of  the  cost  of  pur- 
chase. If  the  life-occupant  pays  more  than  his  pro- 
portion he  becomes  a  creditor  of  the  estate  for  the 
excess.' 

As  the  life-occupant  is  entitled  to  its  possession 
while  the  estate  continues,  he  cannot  be  compelled 
to  sell  his  interest,  or  to  accept  money  for  the  use  of 
the  property.* 

(d)  A  life-occupant  may  sell  his  interest,  but  can- 
not by  so  doing  defeat  in  any  way  the  rights  of  the 
remainder-man.  But  the  latter  may,  by  ratifying 
an  unlawful  sale  of  his  interest,  render  it  valid. 

In  some  states  land  may  be  sold  under  order  of  the 

'  Whitney  v.  Salter,  i  Minn..  103. 
'Armiger  v.  Reitz,  gi  Md.,  334. 


MODES  OF  LIMITED  OWNERSHIP     157 

court  by  statute  for  re-investment,  or  to  serve  more 
perfectly  the  interest  of  minors,  and  other  parties. 
This  can  also  be  done  when  all  the  parties  interested 
are  properly  represented  and  desire  its  sale. 

(e)  Sometimes  the  relations  of  parties  requires  that 
a  present  value  be  put  on  an  estate  for  life.  The  Eng- 
lish rule,  that  an  estate  for  life  is  equal  in  value  to 
one-third  of  the  entire  estate,  has  been  adopted  in 
some  states.  But  a  closer  and  more  general  rule  is 
to  value  the  life -estate  by  the  probable  duration  of 
the  owner's  life  based  on  the  tables  of  life  expectancy 
and  also  the  condition  of  his  health,  and  other  matters 
properly  affecting  each  case. 

5.  Another  important  principle  governing  an  estate 
for  life  is,  no  waste  can  be  committed  that  will  essen- 
tially injure  or  impair  the  future  estate.  This  prin- 
ciple, which  is  easy  enough  to  state,  is  very  diflficult 
to  execute.  Hundreds  of  cases  of  this  nature  have 
arisen,  nor  do  we  suppose  the  end  of  them  will  soon 
come. 

Waste  may  be  either  voluntary  or  permissive.  The 
first  is  some  act  done  which  injures  the  inheritance; 
the  other  is  the  omission  of  some  duty  yielding  a  similar 
result.  To  tear  down  a  house  is  voluntary  waste;  to 
suffer  it  to  decay  is  permissive. 

The  application  of  this  rule  to  trees  is  sometimes 
diflBcult.  The  common  law  rule  is  that  to  fell  timber, 
or  to  cause  its  decay,  is  waste.  But  what  kind  of 
trees  are  to  be  regarded  as  timber-trees?  Some  of 
them  are  clearly  defined,  like  oak,  ash  and  elm;  others, 
like  willow,  are  just  as  clearly  not  within  the  category; 


iS8     BUSINESS  MAN'S  LEGAL  ADVISER 

while  others  are  in  the  doubtful  list.  An  eminent 
author,  whom  we  have  before  cited,  says  that,  in  this 
country,  the  question  may  be  answered  by  ascertaining 
the  standard  or  practice  of  a  prudent  farmer.  What 
would  he  do  with  his  own  land,  having  regard  to  it  as 
an  inheritance  ? ' 

This  question  has  often  arisen  in  states  where  the 
lands  are  covered  with  forests  and  cannot  be  culti- 
vated until  they  are  cleared  of  the  timber;  In  these 
the  question  turns  on  the  custom  of  farmers  and  on 
the  value  of  the  timber;  whether,  by  clearing  the  lands, 
so  much  timber  has  been  cut  as  to  injure  the  inheri- 
tance. 

Wood  cut  by  a  life-occupant  in  clearing  the  land  be- 
longs to  him  —  and  as  an  incident  he  may  sell  it;  but 
he  cannot  cut  wood  expressly  for  the  purpose  of  sale. 
Again,  when  sued  for  cutting  and  selling  timber  he 
cannot  make  a  counter-claim  for  improvements  on 
the  premises  at  another  time;  but  he  can  remove  cut 
or  decayed  timber,  to  clear  the  land  and  give  young 
trees  a  chance  to  grow. 

Sometimes  timber  is  blown  down;  when  this  happens 
the  life-occupant  is  entitled  to  a  quantity  for  firewood. 
To  carry  off  trees  that  have  been  blown  down  is  to 
render  himself  liable  for  their  value. 

Another  kind  of  waste  consists  in  opening  gravel- 
pits  and  selling  gravel  or  clay  for  brick-making.  An 
occupant  for  life  can  neither  take  clay  nor  cut  wood  for 
the  purpose  of  making  bricks  for  sale,  unless  this  has 
been  the  usual  mode  of  improving  the  land.    In  such  a 

1  X  Washburn,  S  274,  p.  130.  S 


MODES  OF  LIMITED  OWNERSHIP     159 

case  he  would  have  the  right  to  continue  to  use  it 
like  previous  occupants. 

For  the  same  reason  he  cannot  search  the  land  for 
mines,  and,  after  their  discovery,  open  them  and  pro- 
ceed to  work  them.  But  mines  already  opened  on 
taking  the  estate  he  may  continue  to  work,  even  though 
he  should  exhaust  them,  for,  in  so  doing  he  is  simply 
taking  the  profits  of  the  soil.  Furthermore,  he  would 
not  be  guilty  of  waste  in  opening  new  shafts  or  pits 
following  the  same  vein  or  veins  as  those  already 
opened  at  the  time  of  taking  possession.  The  general 
principle,  therefore,  is,  he  can  improve  the  land  in 
the  same  manner  as  his  predecessor,  but  cannot  im- 
pose new  burdens  or  new  uses;  and  all  improvements 
that  he  may  have  made  on  the  land  in  working  mines 
and  in  other  ways  belong  to  the  reversioner  whenever 
he  takes  possession. 

6.  The  life-occupant  must  improve  the  land  in  the 
manner  required  by  good  husbandry,  and  any  violation 
of  this  rule  is  waste.  This  phrase  is  a  relative  expres- 
sion varying  greatly  in  different  countries  and  places. 
A  few  illustrations  may  be  given.  For  example,  it 
would  be  waste  to  let  pasture  lands  be  overgrown  with 
brush,  to  impoverish  fields  by  constant  tillings,  to  re- 
move minure  made  in  the  ordinary  course  of  hus- 
bandry, to  suffer  a  bank  to  become  weak  or  broken 
whereby  water  will  overflow.  Once  it  was  said  that 
adapting  a  building  to  a  new  purpose,  or  converting 
two  chambers  in  a  house  into  one,  would  be  waste. 
This  rule  has  been  displaced  by  the  more  rational  test, 
will  the  act  essentially  injure   the   reversioner's   in- 


i6o     BUSINESS  MAN'S  LEGAL  ADVISER 

heritance?  In  a  well-copsidered  case  it  was  remarked 
that  the  life-occupant  has  no  right  to  pull  down  valu- 
able buildings,  or  to  make  improvements  or  alter- 
ations, which  would  materially  or  permanently  injure 
or  change  the  nature  of  the  property.  On  the  other 
hand,  it  cannot  be  waste  to  make  new  erections  which 
can  be  removed  at  the  end  of  the  term  without  much 
inconvenience,  leaving  the  property  in  the  same  situ- 
ation as  before, 

A  life-occupant  who  takes  possession  of  a  ruinous 
house  cannot  be  made  responsible  if  he  suffer  it  to 
remain  so;  but  he  may  repair  it  if  there  be  timber  on 
the  land  fit  for  the  purpose.  It  would  be  double 
waste  to  suffer  a  house  to  go  to  decay  and  then  cut 
timber  to  make  repairs. 

(a)  A  life-occupant  must  make  the  repairs  needful 
to  prevent  waste  unless  relieved  by  express  direction 
or  agreement.  What  these  are  may  be  clearly  defined 
in  some  cases,  but  not  in  all.  He  is  not  required  to 
expend  large  sums  for  this  purpose,  and  especially 
for  repairs  to  buildings  untenantable  at  the  time  he 
took  possession,  or  afterward  destroyed  by  act  of  God 
or  by  an  accidental  fire  not  caused  by  his  negligence. 
But  he  may  repair  an  untenantable  house. 

A  life-occupant  cannot  tear  down  a  house  even 
if  it  be  unfit  for  use,  or  the  object  be  to  erect  a  better 
building  in  its  place.  Nor  can  it  be  removed  un- 
less it  is  not  afl&xed  in  a  permanent  manner  to  the 
land. 

Should  the  Ufe-occupant  not  make  needful  repairs 
within  a  reasonable  time  after  due  notice  from  the 


MODES  OF  LIMITED  OWNERSHIP     i6i 

remainder-man,  the  latter  may  make  them  and  recover 
the  amount  from  the  life-occupant. 

A  life-occupant  cannot  create  a  charge  against  the 
remainder-man  for  the  money  expended  in  permanent 
improvements  however  much  they  may  add  to  the 
value  of  the  estate,  for  they  must  be  deemed  to  have 
been  made  for  his  own  benefit.  Consequently  they 
pass  on  his  death  to  the  remainder-man  who  takes 
them  without  any  liability  therefor.* 

(b)  The  life-occupant  is  not  required  to  keep  the 
premises  insured  for  the  benefit  of  the  remainder-man 
or  reversioner.  And  if  he  does  insure  his  life  interest 
without  intending  to  protect  the  remainder-man,  the 
latter  is  not  entitled  to  the  excess  if  there  be  any  over 
the  value  of  the  life  estate.'  But  if  a  building  is 
merely  injured  by  fire,  both  the  life-occupant  and 
owner  of  the  reversion  are  entitled  to  have  the  insur- 
ance applied  to  the  repair  of  the  building.' 

7.  The  ways  of  dividing  the  income  from  corporate 
stock  between  the  life-occupant  and  the  remainder- 
man, are  not  the  same  in  every  state.  The  four 
principal  rules  or  ways  may  be  given. 

First,  cash  dividends  go  to  the  life- tenant  or  occu- 
pant and  stock  dividends  to  the  remainder-man.  This 
is  often  called  the  Massachusetts  rule.  "A  trustee 
needs  some  plain  rule  to  guide  him,"  so  the  court  in 
that  state  has  said,  as  if  a  clear  pathway  for  him  was 
of  more  importance  than  a  just  division  of  the  income 
between  the  parties  entitled  to  it. 

»  Chilvers  v.  Race,  196  HI.,  71.  82. 
» Spalding  v.  Miller,  103  Ky.,  40s. 
*  Brough  V.  Higgins,  3  Giatt.,  408. 


i62     BUSINESS  MAN'S  LEGAL  ADVISER 

Second,  another  rule  is,  all  dividends  declared  out  of 
earnings,  whether  in  cash  or  stock  go  to  the  life-occu- 
pant, while  the  division  of  property  or  its  proceeds 
from  other  sources  than  earnings  goes  to  the  remainder- 
man. This  rule  has  regard  for  the  substance  rather 
than  the  form  of  things.  When  all  the  earnings  thus 
divided  have  acciunulated  since  the  testator's  death 
the  rule  is  just  and  reasonable. 

Third,  in  determining  the  character  of  a  dividend, 
whether  it  is  a  real  division  of  earnings  or  not,  some 
courts  hold  that  the  action  of  directors  is  conclusive, 
while  other  courts  have  seen  with  greater  clearness  that 
a  board  of  directors  cannot  by  any  resolutions  or  dec- 
larations or  use  of  the  money  divest  it  of  its  real 
character,  and  that  any  attempt  to  do  so  should  be 
prevented  by  proper  legal  action. 

Fourth,  in  many  cases  unusual  or  extraordinary 
dividends  declared  are  composed  in  part  at  least  of 
the  profits  or  property  existing  at  the  time  of  the 
testator's  death.  In  such  cases  the  portion  earned 
or  existing  before  his  death  goes  to  the  remainder- 
man, and  the  other  portion  to  the  life  occupant. 
This  rule  is  expanding,  though  it  has  not  been 
adopted  in  any  state.  It  is  true  that  so  long  as 
directors  act  in  good  faith  in  making  accumulations 
the  court  may  not  Hsten  to  the  complaint  of  a  life- 
tenant  who  desires  a  division,  but  when  a  dividend 
has  been  declared,  whether  in  cash  or  stock,  it  would 
not  be  difficult  for  the  court  in  many  cases  to 
determine  whether  it  had  been  declared  out  of 
earnings  or  other  property;  and,  if  out  of  earnings, 


MODES  OF  LIMITED  OWNERSHIP     163 

what  portion  had  accumulated  since    the  testator's 
death.* 

8.  There  are  two  remedies  against  the  life-occupant 
who  is  guilty  of  committing  waste,  which  are  worthy 
of  brief  mention.  One  is  an  action  to  recover  damages 
for  the  injury;  the  other,  and  more  common,  remedy  is 
an  injunction  to  prevent  him  from  committing  waste. 
If,  for  example,  the  occupant  is  about  to  cut  timber 
or  open  mines,  or  do  any  other  thing  which  will  injure 
the  inheritance,  the  reversioner  or  remainder-man 
can  apply  to  a  proper  tribunal  to  restrain  him  from 
doing  these  things.  This  is  the  common  and  more 
effective  remedy,  but  the  occupant  may  commit  a 
serious  injury  before  the  remainder-man's? discovery. 
While  the  reversioner  is  journeying  around  the  world 
the  life-occupant  may  have  improved  his  opportunity 
to  despoil  the  other  of  his  inheritance.  When  this 
has  happened  the  only  remedy  left  to  the  reversioner 
is  to  recover  damage  for  the  injury. 

§  2.  By  Husband  as  Tenant  by  the  Curtesy 

1.  Curtesy  defined. 

2.  There  must  be  a  legal  marriage. 

3.  Wife's  estate  must  be  inheritable. 

4.  Birth  of  a  child. 

5.  Duration  of  his  estate. 

6.  It  can  be  taken  for  his  debts. 


'  See  I  BoIIes  on  the  Modem  Law  of  Banking,  Sec.  40.,  Ch.  IV.,  p.  loa, 
for  a  full  exposition  of  this  subject.  In  consequence  of  the  enormous  expan- 
sion  of  corporate  wealth,  questions  concerning  the  division  of  income  between 
the  two  classes  are  very  Important  and  constantly  arising. 


i64     BUSINESS  MAN'S  LEGAL  ADVISER 

7.  He  may  forfeit  his  estate. 

8.  How  estate  by  the  curtesy  has  been  affected  by 

legislation. 

1.  A  husband  acquires  an  interest  or  estate  in  land 
belonging  to  his  wife  after  her  death,  and  is  called  a 
tenant  by  the  curtesy.*  Four  requisites  are  needed  to 
create  such  an  estate:  her  lawful  marriage;  her  posses- 
sion of  the  land  during  her  marriage;  the  birth  of  a 
child  alive  during  her  marriage;*  and  her  death. 

2.  The  marriage  must  be  legal.  Though  a  marriage 
is  unlawful,  if  it  is  not  set  aside  during  the  life  of  the 
wife,  the  estate  of  curtesy  will  arise  at  her  death.  The 
marriage  cannot  afterward  be  declared  void. 

3.  The  wife's  estate  must  be  inheritable.  The 
curtesy  extends  to  various  equities  and  interest  she 
had  in  lands;  also  to  money  which  was  intended  to  be 
laid  out  in  them  for  her  benefit.  In  such  cases,  as 
in  others  previously  mentioned,  equity  treats  the 
money  as  land  itself;  and  the  husband  takes  the  same 
interest  in  the  money  that  he  would  take  had  it  been 
transmuted  into  land  itself. 

When  the  wife's  interest  in  land  rests  on  a  condition 
that  may  defeat  her  interest,  the  husband's  curtesy 
may  also  be  defeated.  In  other  words,  his  curtesy 
never  survives  after  the  destruction  of  her  interest.  In 
accord  with  this  principle,  should  the  wife  own  land  with 
two  or  more  joint  tenants,  and  die,  her  husband  could 
not  claim  the  curtesy  because,  from  the  very  nature 

>  See  Vol.  VI.,  Chap.  I.,  Sec.  3,  §  22. 
*  See  p.  126,  S  4,  fox  eaception. 


MODES  OF  LIMITED  OWNERSHIP     165 

of  joint  tenancy,  the  land  belonging  to  the  joint  tenants 
on  the  death  of  any  tenant  passes  to  the  survivors. 

Formerly,  the  wife's  possession  was  regarded  as 
essential  to  create  an  estate  by  the  curtesy  in  her  hus- 
band after  her  death;  in  many  states  this  principle 
has  been  modified.  So  far,  indeed,  that  on  the  com- 
pletion of  her  title,  though  she  is  not  in  formal  posses- 
sion at  the  time  of  her  death,  her  husband  is  entitled 
to  his  curtesy. 

A  different  principle  applies  to  wild  land,  for  the 
ownership  draws  the  legal  possession  without  having 
taken  actual  possession.  In  Kentucky,  however, 
actual  possession  is  requisite  in  order  to  give  the 
curtesy  in  wild  lands. 

The  husband  can  have  no  curtesy  in  land  of  which 
his  wife  is  possessor  merely  as  a  trustee. 

4.  The  wife  should  have  a  living  child  who  might 
possibly  have  inherited  the  estate,  otherwise  her  hus- 
band's curtesy  will  not'  rise.  It  is  immaterial  whether 
the  child  was  born  before  or  after  the  wife  acquired 
her  estate.  The  important  fact  is,  would  the  child,  if 
living,  have  inherited  the  estate?  If  so,  the  husband 
is  entitled  to  his  curtesy  therein. 

As  soon  as  a  child  is  bom  the  husband's  right  to 
curtesy  is  said  to  be  initiate,  or  to  have  begun,  and  is 
consummate  only  at  death.'  This  is  the  common  law 
rule,  but  "in  many  states,"  says  Washburn,  "the 
necessity  of  a  child  being  bom  is  dispensed  with  by 
statute."*  - 

'  iWasbburn,  §  343.  P-  IS7- 
*  iWashburn,  §  341,  p.  156. 


i66     BUSINESS  MAN'S  LEGAL  ADVISER 

5.  His  estate,  though  having  its  origin  in  his  obli- 
gation to  support  his  children,  is  only  for  his  own  life. 
Nevertheless,  his  right  is  just  as  complete,  whether 
they  need  his  support  or  not;  or  whether  they  live 
for  a  brief  space,  or  for  many  years. 

6.  The  husband's  interest,  initiate  as  well  as  consum- 
mate, can  be  taken  for  his  debts,  nor  can  he  defeat  the 
right  by  any  disclaimer,  nor  will  equity  interfere  in 
favour  of  wife  or  children  to  prevent  his  creditors  from 
levying  thereon. 

7.  He  may  forfeit  his  estate;  in  some  of  the  states 
this  is  one  of  the  consequences  of  legal  separation. 
Recently,  the  Supreme  Court  of  Missouri  decided  that 
a  divorce  deprived  him  of  his  estate  by  the  curtesy, 
even  though  he  was  the  innocent  party  to  the  proceed- 
ings, for  it  was  voluntary  on  his  part.  In  some  states 
the  interest  of  an  innocent  husband  in  his  wife's  land 
still  continues.  The  reasoning  of  the  Missouri  court 
is  very  persuasive. 

8.  In  concluding  this  section  it  may  be  added  that 
this  right  of  curtesy,  which  has  long  been  recognised 
in  Anglo-Saxon  society,  is  founded  on  the  idea  that  the 
husband  is  bound  to  maintain  his  children,  and  there- 
fore it  is  proper  that  the  wife's  property  should,  to 
some  extent,  be  devoted  to  the  same  purpose.  The 
property  rights  of  married  persons  have  been  greatly 
changed  by  legislation  during  the  last  fifty  years. 
Thus,  a  woman  is  entitled  after  marriage  to  retain  and 
acquire  property  very  much  as  an  unmarried  one;  also 
to  make  contracts  with  great  freedom;  consequently, 
in  many  states,  a  husband's  right  by  the  curtesy  in 


MODES  OF  LIMITED  OWNERSHIP     167 

his  wife's  real  estate  after  her  death  has  been  abolished. 
In  a  few  the  right  remains  greatly  modified,  so  a  state- 
ment of  the  leading  principles  pertaining  to  the  subject 
has  been  given. 

§  3.  By  Widow  AS  Dower 

1.  Dower  defined. 

2.  Priority  of  husband's  creditors. 

3.  To  what  estate  dower  belongs. 

4.  She  must  join  in  every  deed  with  her  husband,  to 

convey  a  good  title  to  his  land. 

5.  There  must  have  been  a  valid  marriage. 

6.  How  her  dower  may  be  lost. 

7.  Assignment  of  dower  to  her. 

8.  Modes  of  assigning  it. 

9.  Her  remedy  when  it  is  not  assigned. 

10.  Assignment  of  money  in  lieu  of  dower. 

11.  Provision  by  jointiure. 

12.  Provision  by  will  of  testator  in  lieu  of  dower. 

I.  Dower  is  the  interest  a  wife  possesses  in  her  hus- 
band's land  after  his  death,  and  is  largely  regulated  by 
statute.*  Usually  it  is  an  interest  for  life  in  the  use  of 
one-third  of  his  real  estate.  As  long  as  the  married 
relation  exists,  her  interest  is  in  the  nature  of  an  en- 
cumbrance, or  inchoate  right,  which  she  cannot  assign 
or  sell  except  by  joining  in  a  deed  with  her  husband. 
At  his  death  the  right  becomes  consummate  or  per- 
fected; until  then,  it  is  not  an  estate,  strictly  speaking^, 

>See  VoL  VI.,  Chap.  I,  Sec.  3,  S  33. 


i68     BUSINESS  MAN'S  LEGAL  ADVISER 

in  any  land.  The  setting  apart  of  land  for  her  use  is 
called  the  assignment  of  dower;  and,  when  this  is 
done,  she  has  a  life-estate  therein  with  all  rights  and 
incidents  pertaining  to  an  estate  of  that  character. 

2.  In  some  states  she  holds  her  dower  subject  to  the 
claims  of  her  husband's  creditors;  generally,  her  dower 
is  preferred  to  them.  Of  course,  a  mortgage  or  other 
lien  of  that  nature  on  the  land,  existing  at  the  time  of 
tiis  death,  is  not  impaired  by  that  event;  but  the  or- 
dinary claims  of  creditors  against  him  cannot  be  trans- 
formed into  legal  judgments  and  her  dower  lands  be 
taken  in  payment. 

3.  A  widow  has  dower  in  any  estate  belonging  to  her 
husband  which  her  children,  if  any,  could  have  in- 
herited as  his  heirs.  It  includes  everything  definable 
as  land.  She,  therefore,  has  a  dower  in  land  that  has 
been  mortgaged  by  him,  subject  to  the  mortgage;  in 
short,  to  all  estates  in  which  he  possesses  an  equitable 
as  well  as  a  legal  interest.  But  it  does  not  include 
an  estate  held  by  him  as  a  trustee. 

When  the  wife's  dower  is  in  mortgaged  land,  her 
interest  does  not  become  complete  until  after  the  fore- 
closure and  satisfaction  of  the  mortgagor's  claim. 
Her  dower  then  attaches  to  the  remainder,  and  she  is 
entitled  to  the  use  of  such  a  portion  as  the  law  pre- 
scribes. 

Again,  when  it  is  necessary  that  land  in  which  she 
possesses  an  interest  should  be  sold,  her  right  will 
follow  and  attach  to  the  proceeds  of  the  sale. 

Of  course,  the  widow's  right  of  dower  in  her  hus- 
band's land  is  affected  by  his  title  thereto.    If  he 


MODES  OF  LIMITED  OWNERSHIP     169 

was  never  the  possessor  before  and  after  marriage, 
because  another  person  was  in  possession  as  adverse 
owner,  dower  will  not  attach.  In  such  a  case  her 
right  will  become  effective  only  after  he  has  recovered 
possession.  No  length  of  time  is  required  after  his 
possession  to  secure  her  right  of  dower.  The  vesting 
of  the  possession  in  him,  even  for  a  short  period,  is 
sufficient. 

To  this  rule  must  be  noted  an  exception.  She  will 
acquire  no  dower  interest  in  land  of  which  her  husband 
may  be  the  nominal  possessor.  For  example:  some- 
times a  conveyance  cannot  be  made  directly  to  a 
person,  but  only  through  the  medium  of  another. 
Should  this  medium  happen  to  be  a  married  person, 
his  wife  would  acquire  no  dower  in  the  land  of  which, 
for  a  moment,  he  was  the  legal  owner.  Another  ex- 
ample may  be  given  —  that  of  a  mortgage.  Suppose 
a  married  man  should  purchase  a  piece  of  land  and 
give  a  mortgage  thereon  to  the  vendor  for  a  part  or 
all  of  the  purchase  price.  Strictly  speaking,  there  is  a 
moment  of  time  during  which  he  is  the  entire  owner. 
In  truth,  it  was  not  intended  between  the  parties  that 
the  wife  should  acquire  a  dower  or  inchoate  right  there- 
in which  should  precede  the  mortgagee's  interest.  Save 
exceptions  of  this  character,  the  wife  is  entitled  to 
dower  in  all  of  the  lands  of  her  husband,  wherever 
they  may  be,  subject  to  the  laws  of  the  place  where 
they  may  be  located. 

4.  By  reason  of  her  inchoate  right  or  interest  in  her 
husband's  land,  the  law  requires,  in  nearly  all  the  states 
of  the  Union,  that  she  should  sign  every  deed  convey- 


I70     BUSINESS  MAN'S  LEGAL  ADVISER 

ing  it,  in  order  to  insure  a  good  title  to  the  purchaser. 
This  requirement  is  now  well  understood,  and  blank 
deeds  are  usually  printed  conforming  with  the  law. 
Not  infrequently  the  wife  has  not  signed,  doubtless 
from  accident,  and  therefore  has  given  a  defective 
title,  amended,  perhaps,  if  at  all,  at  considerable  cost 
and  after  long  delay.  The  legal  requisites  pertaining 
to  the  execution  of  such  deeds  are  defined  by  the  stat- 
utes of  the  different  states. 

5.  Like  an  estate  by  the  curtesy,  a  legal  marriage  is 
necessary  to  sustain  an  estate  of  dower.  If  it  is  a 
marriage  which  can  be  set  aside,  but  is  not,  then  it  is 
known  in  the  law  as  a  voidable  marriage,  which,  imless 
avoided  during  his  lifetime,  will  sustain  her  right  of 
dower  on  his  death. 

6.  The  wife's  right  of  dower  may  be  lost  or  barred  by 
a  legal  separation  or  divorce.  By  a  remarriage,  or  a 
setting  aside  of  the  divorce,  her  dower  rights  revive. 
In  other  words,  it  is  necessary  to  support  her  claim  to 
dower  that  she  should  be  the  wife  of  the  husband  at  his 
decease.  Consequently,  if  they  have  been  Idivorced, 
whatever  may  have  been  the  cause,  the  dower  is  ex- 
tinguished, unless  the  statutes,  as  some  of  them  do, 
contain  a  saving  clause,  giving  the  innocently  divorced 
wife  the  right  to  enjoy  her  dower  as  if  she  were  still 
his  wife. 

Again,  her  dower  maybe  lost  by  the  defeat  or  destruc- 
tion of  her  husband's  estate.  For  example,  another 
person  may  claim  the  title  and  by  a  proper  legal  pro- 
cedure, prove  his  better  title  thereto  and  thus  become 
the  possessor.    In  such  cases,  in  which  the  husband 


MODES  OF  LIMITED  OWNERSHIP     171 

really  has  no  estate  at  all  or  in  which  it  has  been  taken 
away  from  him  by  legal  process,  her  interest  therein 
also  fails.  Or,  to  change  the  form  or  expression,  she 
cannot  acquire  or  preserve  a  dower  estate  after  her 
husband  fails  to  acquire  or  preserve  a  still  greater  one. 

While  this  is  the  law,  the  wife's  inchoate  right  of 
dower  cannot  be  affected  by  the  action  of  an  adverse 
possessor  of  her  husband's  land  during  the  period  of 
marriage,  or,  to  use  a  technical  term,  during  coverture. 

Her  right  may  be  defeated  by  the  exercise  of  eminent 
domain  by  the  state.  This  exercise  of  public  power  is 
paramount  to  every  individual  right  in  land,  and  ap- 
plies as  much  to  women  under  all  conditions  as  to  men. 

7.  On  the  husband's  death  his  wife  is  entitled  to  an 
immediate  assignment  of  her  dower.  Until  the  assign- 
ment is  made,  for  a  period  of  forty  days  she  has  a  right, 
at  common  law,  to  reside  in  the  principal  house  on  the 
estate,  provided  she  does  not  marry  within  that  time. 
This  right  is  called  her  quarantine.  The  common  law 
period  has  been  changed  in  many  states  by  statute. 
The  general  nile  is  that  dower  must^be  set  out  to  her 
during  this  period;  if  it  be  not,  the  law  prescribes  for 
her  the  remedy. 

8.  There  are  two  modes  of  assigning  dower,  which 
may  be  briefly  described.  The  dower  of  "common 
right,"  so  called,  is  to  give  her  a  definite  piece  of  real 
estate.  This  is  done  by  the  sheriff  under  proper  direc- 
tions from  the  court.  The  kind  of  land  set  out  to  her 
depends  largely  on  its  nature,  location,  etc.,  and  need 
not  be  more  fully  described.  The  extent  of  her  one- 
third  interest  is  determined  by  the  market  and  pro- 


172     BUSINESS  MAN'S  LEGAL  ADVISER 

ductive  value  of  the  land,  instead  of  the  quantity. 
She  is  entitled  to  such  a  portion  of  the  estate  as  will 
5deld  to  her  one-third  of  the  rents  and  profits  of  the 
whole. 

The  other  mode  of  assignment  is  called  "against 
common  right."  This  is  done  by  agreement.  This 
mode  will  effectually  bar  the  claim  to  dower  of  common 
right,  if  properly  and  legally  executed.  In  adopting 
this  mode  it  is  the  common  practice  for  the  widow  to 
give  a  release,  under  seal,  of  her  dower  right. 

9.  On  refusal  to  assign  dower  to  her,  as  the  law 
requires,  she  may  have  recourse  to  ample  remedies. 
One  of  them  is  an  action  at  law  to  recover  it;  another 
is  a  similar  proceeding  in  equity;  a  third  and  more 
common  practice  is  a  summary  proceeding  in  the  court 
having  direction  of  the  settlement  of  the  estate.  The 
action  must  be  brought  in  the  county  where  the  land 
lies,  to  which  the  law  of  the  place  must  be  applied. 
As  the  action  is  personal  it  dies  with  the  widow. 

Success  in  her  action  is  followed  by  judgment  for 
the  assignment  of  dower  and  sometimes  for  damages 
also  for  the  delay  in  assigning  it,  though  not  at  common 
law.    They  are  a  matter  strictly  of  statute. 

10.  In  some  states,  by  statute,  money  is  assigned 
instead  of  land  as  dower.  A  gross  sum  is  assigned  in 
such  cases  instead  of  an  annual  share  in  the  income. 

11.  Again,  dower  may  be  barred  by  a  jointure,  which 
is  a  provision  made  for  the  wife  by  the  husband  out  of 
his  property.  This  is  done  before  marriage,  and  is  a 
complete  bar  to  her  dower  only  when  made  before  that 
event.    When  made  afterward  she  has  a  right  to  elect 


MODES  OF  LIMITED  OWNERSHIP     173 

whether  to  take  her  jointure  or  her  dower,  but  cannot 
take  both.  Formerly,  jointures  were  frequently  made 
but,  of  late  years,  they  have  given  way  to  marriage 
settlements,  or  specified  agreements  in  which  the  terms 
greatly  vary  with  circumstances. 

12,  Finally,  a  testator  sometimes  provides  for  his 
widow  in  lieu  of  dower.  This  is  not  unusual.  After 
he  has  done  so  she  can  elect  either  to  take  what  the 
testator  has  given  her,  or  to  reject  it  and  claim  her 
right  of  dower.  Suppose,  for  example,  that  a  testator 
should  possess  a  large  amount  of  real  property,  and  in 
his  will  should  give  his  wife  a  comparatively  small 
sum  of  money  on  condition  of  renouncing  her  right 
of  dower,  very  likely  she  would  reject  the  legacy  and 
claim  her  right  of  dower,  as  she  has  often  done.  If 
she  accepted  the  legacy  it  would  completely  extin- 
guish her  right  or  interest  in  the  real  estate. 

§  4.  By  Homesteaders 

1.  Object  of  legal  protection  of  homestead. 

2.  Constitutionality  of  the  laws. 

3.  Right  cannot  be  affected  by  subsequent  legislatioB. 

4.  How  the  courts  regard  homestead  laws. 

5.  What  is  a  homestead. 

6.  Amount  of  land  it  includes. 

7.  Meaning  of  head  of  family. 

8.  What  debts  for  which  homestead  cannot  be  takcH. 

9.  What  rights  the  homesteader  can  exercise. 

10.  How  homestead  can  be  destroyed. 

11.  Wife  must  join  in  conveying  homestead. 


174     BUSINESS  MAN'S  LEGAL  ADVISER 

1.  Many  of  the  states,  within  a  comparatively  short 
period,  have  conferred  rights  on  the  owners  of  home- 
steads. Their  principal  object  is  to  protect  them 
from  seizure  for  the  debts  of  their  owners.  Such 
a  policy  is  deemed  worthy  by  the  state,  as  other  per- 
sons beside  the  homesteaders  are  interested  in  their 
preservation. 

2.  As  the  Federal  Constitution  prohibits  the  states 
from  passing  laws  impairing  contract  obligations,  no 
state  can  withdraw  the  land  of  an  individual  from  his 
contemporaneous  creditor.  Could  a  homesteader  be- 
guile his  creditors  with  the  knowledge  of  his  great 
possessions  and  afterward  secure  such  legislation,  they 
would  be  greatly  wronged. 

The  constitutional  provision  relates  solely  to  con- 
tracts between  individuals,  and  to  no  other  kind  of 
property.  But  a  judgment  rendered  in  an  action  not 
founded  on  a  contract,  but  on  a  wrong,  is  not  affected 
by  this  constitutional  requirement.  Consequently,  a 
homestead  law  preserving  the  land  of  a  homesteader 
from  such  a  judgment  would  not  be  an  invasion  of  the 
constitution,  because  the  wrong-doer's  liability  did 
not  spring  from  the  violation  of  a  contract.* 

3.  The  homestead  right,  having  once  attached  to  the 
land,  cannot  be  changed,  without  the  owner's  consent, 
by  subsequent  legislation.  Thus,  an  exemption  of  a 
specified  number  of  acres  of  land  in  the  country  or  city, 
which  has  been  impressed  with  a  homestead  character, 
cannot  be  affected  by  the  subsequent  incorporation  of 
the  land  without  the  owner's  consent.    The  owner 

*  McAfee  v.  Covington  71,  Ga.,  27a. 


MODES  OF  LIMITED  OWNERSHIP     175 

may,  however,  abridge  his  right  by  dividing  it  into 
parcels  and  ofifering  them  for  sale. 

4.  At  first  the  courts,  looking  on  homestead  legis- 
lation with  an  unfriendly  eye,  construed  it  strongly 
against  the  homesteader.  Through  more  familiarity 
with  its  operation  and  with  the  growth  of  public  senti- 
ment, the  courts  now  give  full  effect  to  its  intent  and 
purpose. 

5.  A  homestead,  within  the  meaning  of  this  law,  is 
the  home  or  permanent  place  or  residence  of  the  owner 
of  the  land,  and  includes  the  area  specifically  prescribed, 
which  varies  greatly  in  the  different  states.  Nor  is  its 
character  changed  by  the  owner's  temporary  absence. 
On  the  other  hand,  it  does  not  partake  of  this  character 
through  mere  intention.  The  same  rule  does  not  apply 
to  such  land  as  applies  to  land  acquired  by  a  person 
for  the  purpose  of  exercising  the  right  of  sufifrage. 
To  stamp  land  as  a  homestead  it  must  be  used  as  a 
home. 

6.  Whether  the  amount  of  land  that  may  be  thus 
marked  must  consist  of  a  single  piece,  or  may  consist 
of  several  pieces,  is  an  open  question.  In  an  Arkansas 
town  a  person  purchased  one-third  of  a  town  lot,  on 
which  was  a  building  wherein  he  kept  a  retail  store. 
Afterward,  he  purchased  the  remainder  of  the  lot  and 
erected  thereon  a  residence.  Though  the  parts  were 
separated  by  a  fence,  the  entire  lot  still  retained  its 
homestead  character.  Nor  was  its  character  as  a 
homestead  affected  by  mortgaging  the  residential 
portion  only  and  by  a  relinquishment  on  the  part  of  the 
owner's  wife  of  her  dower  rights  therein. 


176      BUSINESS  MAN'S  LEGAL  ADVISER 

Again,  when  a  statute  prescribes  that  the  land  must  be 
a  single  tract  or  piece,  can  any  portion  extend  on  the 
other  side  of  a  street?  If  the  owner  is  also  the  owner 
of  the  land  in  the  highway,  the  public  simply  possess- 
ing an  easement  or  right  of  way  over  the  same,  the 
tract  is  regarded  as  an  entirety  and  within  the  law;  but 
if  the  several  portions,  claimed  as  a  homestead,  are 
separated  by  a  street  which  belongs  to  the  public, 
the  owner  can  claim  as  a  homestead  only  that  piece  or 
portion  on  which  his  house  is  situated. 

7.  Of  two  or  three  other  questions  perhaps  the  most 
important  is,  what  is  meant  by  the  head  of  a  family, 
a  phrase  contained  in  every  homestead  act?  Any 
person,  man  or  woman,  married  or  unmarried,  on  whom 
rests  the  duty  to  provide  for  the  support  of  one  or  more 
persons  sustaining  the  family  relation.  For  example, 
an  unmarried  man  with  whom  reside  his  widowed  sister 
and  her  children;  or,  for  a  simpler  illustration,  a  man 
who  supports  his  mother.  An  unmarried  woman  with 
whom  live  the  children  of  a  deceased  sister  is  con- 
sidered by  the  homestead  law  as  the  head  of  the  family. 
Furthermore,  they  need  not  all  live  under  one  roof,  or 
be  employed  about  the  house.  It  is  the  relation  and 
the  dependence  on  that  relation,  not  the  mere  aggrega- 
tion of  individuals,  that  constitute  the  family.  On 
the  other  hand,  the  moral  obligation  will  not  suffice 
if  the  dependents  do  not  reside  with  the  homesteader, 
even  if  he  actually  supports  them;  nor  is  a  temporary 
support  sufficient.  Finally,  the  obligation  to  support 
must  not  arise  simply  from  contract  alone,  as  distin- 
guished from  obligation  founded  on  dependence. 


MODES  OF  LIMITED  OWNERSHIP     177 

8.  Let  us  ascertaiii  more  definitely  what  debts  are 
©utside  the  pale  of  homestead  legislation.  Taxes  for 
municipal  purposes  may  be  collected;  and  purchases 
for  improvements  are  a  lien  on  the  land.  Thus,  in 
Georgia,  the  expenses  of  an  attorney,  rendered  in  de- 
feating a  homestead,  were  considered  as  somewhat 
akin  to  purchase  money.  Furthermore,  the  original 
debt  retains  this  character,  and  cannot  be  extinguished 
by  any  assignment  or  renewal.  But  money  borrowed 
to  pay  off  a  preexisting  debt  does  not  come  within  the 
rule.  On  the  other  hand,  a  person  who  advances 
purchase  money  at  the  time  of  buying,  for  the  express 
purpose  of  securing  a  conveyance  to  the  vendee,  on  his 
promise  to  execute  a  mortgage  for  the  amoimt,  has  a 
lien  on  the  land  therefor. 

9.  The  head  of  a  family  cau  sell  or  mortgage  his 
homestead,  whether  he  is  solvent  or  insolvent;  and  his 
creditors  cannot  prevent  the  sale,  for,  having  no  claim 
on  the  homestead,  their  rights  are  not  impaired.  His 
right  is  equally  complete  to  dispose  of  one  homestead 
and  with  the  proceeds  to  acquire  another,  which  is 
just  as  safe  from  the  invasion  of  creditors. 

10.  A  homestead  may  be  destroyed  or  abandoned, 
but  premises  that  have  once  been  impressed  with  a 
homestead  character  do  not  lose  it  by  the  removal 
of  the  dependent  members  by  death  or  marriage.  In 
other  words,  while  no  man  who  is  not  the  head  of  a 
family  can  become  a  homesteader,  he  may  cease  to  be 
a  family-head  without  ceasing  to  be  a  homesteader. 
Again,  there  must  be  a  substantial  compliance  with 
the  statute  prescribing  a  form  of  waiver  for  abandoning 


178     BUSINESS  MAN'S  LEGAL  ADVISER 

a  homestead;  no  expression  of  intention  will  be  effectual. 
And  whether  one  has  abandoned  his  homestead,  or 
not,  is  a  question  of  combined  residence  and  intention. 
Temporary  absence  for  purposes  of  health  and  pleasure 
will  not  work  an  abandonment,  but  a  departure  with 
the  intention  of  abandoning  the  premises  as  a  perma- 
nent residence  will  destroy  its  homestead  character. 

II.  The  statutes  generally  prescribe  that  the  home- 
stead of  a  married  homesteader  shall  be  conveyed  only 
with  his  wife's  consent.' 

§  5.  By  Lease;  Landlord  and  Tenant 

1.  Uncertainty  of  a  verbal  lease. 

2.  Who  is  presumed  to  be  tenant. 

3.  When  the  law  requires  a  lease  to  be  written. 

4.  Names  of  parties  to  a  lease. 

5.  Period  for  which  a  lease  runs. 

6.  Language  of  a  lease. 

7.  Distinction  between  a  lease  and  an  agreement 

for  a  lease. 
I   8.  The  parties  must  be  competent: 
a. —  Minor, 
b. —  Guardian, 

c. —  Executor  and  Administrator, 
d. —  Trustee, 
e. —  Partner. 
9.  What  can  be  leased. 

10.  Lease  must  be  accepted. 

11.  And  recorded. 

_    >  See  Vol.  VI.,  Chap.  I.,  Sec.  3.  §  14. 


MODES  OF  LIMITED  OWNERSHIP     179 

12.  Unlawful  lease  is  void. 

13.  Covenants  or  agreements  in  a  lease: 

a. —  Quiet  enjoyment, 

b. —  Agreement  against  waste, 

c. —  Agreements  are  personal,  or  run  with  the 

land, 
d. —  Latter  kind  described, 
e. —  May  run  with  all  or  part  of  land, 
/. —  Who  are  affected  by  them. 

14.  Construction  of  inconsistent  provisions. 

1 5.  How  lessee  may  use  the  premises. 

16.  Lessee's  right  to  assign  and  sublet. 

17.  An  assignment  may  be  prevented  by  agreement. 

18.  Distinction  between  sublease  and  assignment. 

19.  A  tenant  at  will  can  assign  nothing. 

20.  Lessor  cannot  sue  subtenant,  but  can  sue  assignee. 

21.  A  non-lessee  in  possession  is  presumed  to  be  as- 

signee of  lessee. 

22.  A  lessor  may  assign  his  reversion. 

23.  Rent  and  reversion  may  be  separated  by  lessor. 

24.  Distinction  between  special  assignment  by  lessee 

and  by  legal  operation. 

25.  Landlord  does  not  warrant  fitness  of  premises. 

26.  Repairs. 

27.  Liability  of  parties  to  repair  or  rebuild  after  fire. 

28.  Lessee  must  pay  rent  though  lessor  does  not  repair. 

29.  And  after  destruction  of  building  by  fire. 

30.  Tenant  cannot  make  material  alterations. 

31.  When  rent  is  due. 

32.  Insurance  does  not  affect  rent. 

33.  Renewals  of  lease. 


i8o     BUSINESS  MAN'S  LEGAL  ADVISER 

34.  Option  to  purchase. 

35.  Eviction: 

a. —  It  stops  rent, 
h. —  What  is  an  eviction, 
c. —  Eviction  from  part  has  same  effect, 
d. —  Eviction  must  be  effected  by  landlord, 
e. —  Effect  of  eviction  by  one  having  paramount 
title. 

36.  Fixtures: 

a. —  Different  rules  apply  to  different  relation- 
ships, 

h. —  Intention, 

c. —  Mode  of  annexing, 

d. —  Recovery  for  removing  fixtures, 

e. —  Effect  of  re-leasing  on  lessee's  right  to 
remove, 

/. —  Effect  on  lessee's  fixtures  in  terminating 
lease. 

37.  Is  tenant  or  landlord  responsible  to  third  party 

for  injuries? 

38.  Who  is  liable  in  apartment  houses. 

39.  Forfeiture  of  lease, 

40.  Effect  of  surrendering  the  lease. 

41.  Merger  of  a  lessee. 

42.  Lessee  cannot  question  lessor's  title. 

43.  Letting  on  shares. 

44.  Tenancy  at  will  described. 

45.  How  created. 

46.  May  be  applied  by  law. 

47.  Cannot  acquire  title  against  owner. 

48.  Rent  is  not  always  payable. 


MODES  OF  LIMITED  OWNERSHIP     i8i 

49.  Tenant's  right  to  crops. 

50.  How  tenancy  may  be  ended. 

51.  Creation  of  tenancy  from  year  to  year. 

52.  Tenancy  from  month  to  month. 

53.  Notice  to  quit. 

54.  This  must  be  distinguished  from  notice  of  summary 

proceedings  to  recover  possession. 

55.  Effect  of  agreement  on  notice  to  quit. 

56.  Effect  of  selling  land. 

I.  Leases  of  land  are  multiplying  in  number,  though 
happily  not  in  complexity.  The  modern  law  has  been 
clarified  by  statute;  nevertheless  there  are  many 
ancient  principles  remaining,  which  it  is  especially 
desirable  to  understand  because  these  diverge 
so  far  from  the  common  understanding  on  which 
individuals,  who  do  not  know  the  law,  too  often 
rely.  Perhaps  no  subject  will  be  considered  of 
more  practical  importance  to  a  larger  number  than 
this  concerning  leases  and  the  mode  of  using  leased 
property. 

First  of  all,  it  may  be  remarked  that  an  oral,  or  to 
use  a  legal  phrase,  a  "parol  lease,"  is  a  very  one-sided 
agreement  in  favour  of  the  landlord.  Is  proof  wanted? 
Should  a  man  rent  a  building  for  a  year  which  burned 
down  within  a  week  after  taking  possession,  through  no 
fault  of  his,  nevertheless  he  would  be  required  to  pay 
the  rent  to  the  end  of  his  tenancy,  nor  would  the  land- 
lord be  required  to  rebuild,  but  might  serenely  keep 
still  and  compel  his  tenant  to  pay  rent,  as  if  he  were 
in  undisturbed  occupancy.    In  some  states  this  com- 


i82     BUSINESS  MAN'S  LEGAL  ADVISER 

mon  law  rule  has  been  changed  by  statute.  Con- 
sequently, it  behooves  every  one  who  rents  a  building, 
however  short  the  time,  to  make  a  written  lease  em- 
bodying the  entire  agreement. 

2.  A  person  in  possession  of  land  who  pays  rent  to 
one  claiming  as  owner  is  presumed  to  be  a  tenant. 
But  the  presumption  of  such  relationship  may  be  over- 
come by  showing  that  the  payment  was  by  mistake, 
or  by  other  equally  clear  circumstances.  In  such  cases 
by  statute  in  many  states  a  tenancy  from  year  to  year 
will  be  presumed.  A  presumption  of  tenancy  arises 
when  an  entry  and  occupation  are  with  the  owner's 
permission.  A  tenancy  cannot  be  implied,  however, 
where  an  express  contract  or  an  arrangement  between 
the  parties  shows  that  it  was  not  intended  by  them  to 
occupy  the  relation  of  landlord  and  tenant,  for  example, 
if  there  is  a  permission  to  occupy  without  rent,  or  the 
possession  is  not  exclusive.' 

3.  As  a  lease  is  an  agreement  for  the  use  of  land,  a 
statute  requires  that  it  shall  be  in  writing,  unless  the 
period  is  very  short  —  in  many  states  one  year.  In 
some  of  them,  however,  the  period  is  longer  —  three 
years,  thus  corresponding  with  the  English  statute. 
The  statute  prescribing  this  requirement  is  one  of  the 
most  important  in  the  entire  body  of  the  law,  and  is 
known  as  "the  statute  of  frauds,"  first  enacted  in 
England,  and  afterwards  re-enacted  in  whole,  or  in 
part,  in  nearly  every  state  of  the  Union.  A  valid  lease 
for  a  year  may  be  made  verbally,  even  though  the  time 

» See  §  27. 
»i34  Cyc,  883. 


MODES  OF  LIMITED  OWNERSHIP     183 

for  taking  possession  is  not  immediate.  Furthermore, 
if  it  exceed  the  statutory  period,  it  is  not  absolutely 
void,  but  operates  as  a  lease  at  will/ 

4.  The  person  who  leases  is  called  the  lessor;  the  one 
who  is  to  come  into  possession,  the  lessee.  The  latter 
does  not  own  the  land,  but  has  only  a  limited  right  to 
the  use  of  it.  The  extent  of  this  use  or  occupancy, 
like  so  many  other  questions  in  the  law,  cannot  always 
be  easily  ascertained.  In  a  general  way,  it  may  be 
said  that  the  lessee  is  the  possessor,  and  can  make  such 
use  of  the  land  or  premises  during  his  term  as  the 
lease  or  the  law  prescribes.  For  example,  on  one 
occasion  a  person  hired  a  store,  on  the  outer  wall  of 
which  people  posted  advertisements,  paying  for  the 
privilege.  The  question  at  once  arose,  could  the  lessee 
sell  this  privilege,  or  did  the  landlord  still  have  the 
right?  How  fully  the  lessee  can  use  the  premises  will 
be  considered  elsewhere.' 

5.  A  lease  is  for  a  definite  period,  usually  called  a 
term.  A  lease  from  the  first  day  of  July  begins  on  the 
second  day  and  lasts  through  the  anniversary  of  the 
day  from  which  it  was  granted.  Very  often  the  term 
of  the  lease  is  expressed  definitely  —  leaving  no 
question  open  concerning  the  precise  niunber  of  days 
for  which  it  is  to  run. 

A  lease  may  be  made  for  a  time  that  can  be  definitely 
ascertained.  Thus,  a  lease  to  A  for  twenty-one  years, 
should  he  live  so  long,  would  be  valid.  So  would  a 
lease  to  A  during  his  minority,  as  the  time  of  attaining 

>  See  Section  44  of  tbia  chapter  for  the  description  of  such  a  lease. 
*  See  {  14. 


i84     BUSINESS  MAN'S  LEGAL  ADVISER 

his  majority  is  fixed  by  law.  In  like  manner  a  lease 
for  a  year,  with  the  privilege  of  holding  for  three  years 
from  a  certain  day,  means  the  right  to  remain  from 
year  to  year,  not  exceeding  three  years;  and  the  tenant 
may  quit  at  the  end  of  any  year  on  giving  proper  no- 
tice. Again,  a  lease  for  a  year,  and  so  on  from  year 
to  year,  is  regarded  as  a  lease  for  one  year  only.  If 
the  tenant  continues  for  a  second  year  without 
the  lessor's  dissent,  it  is  a  lease  for  that  year,  and  so  on 
for  each  subsequent  year. 

A  lease  may  be  created  to  take  effect  at  a  future 
date,  provided  the  period  of  beginning  is  not  so  far 
away  as  to  violate  the  law  concerning  the  creation 
of  future  estates.  In  our  modern  American  juris- 
prudence this  question  is  rare;  under  the  English  sys- 
tem, whence  this  rule  is  derived,  the  legality  of  leases 
that  are  to  begin  in  the  future  has  caused  much  legal 
controversy. 

In  Massachusetts  a  term  for  one  hundred  years  or 
more  is  deemed  a  fee  or  absolute  estate,  so  long  as 
fifty  years  remain  unexpired.  In  Ohio  lands  per- 
petually leased  (or  renewable  forever),  though  in  one 
sense  they  are  leased,  in  another  sense,  are  absolute 
property,  and  may  be  taken  for  the  debts  of  the  lessee. 
In  Connecticut  lands  that  were  free  from  taxation 
because  they  were  devoted  to  religious  uses  were 
leased  for  the  period  of  ninety-nine  years  to  escape 
taxation;  and  the  purchaser,  supposing  this  method 
of  evasion  would  be  successful,  paid  a  much  higher 
price  for  them.  The  state  pounced  on  the  new  owner, 
declared  that  the  lease  was  simply  an  evasion  to  escape 


MODES  OF  LIMITED  OWNERSHIP     185^ 

taxation,  and  that  for  taxation,  at  least,  the  land  must 
be  regarded  as  an  absolute  estate.  Through  a  costly 
law-suit,  therefore,  did  the  buyer  purchase  his  wisdom, 
like  many  others  before  and  since  his  day. 

If  the  duration  of  the  term  is  not  definitely  expressed 
in  the  lease,  resort  may  be  had  to  other  sources  to  find 
an  answer.  A  lease  for  a  year  is  not  converted  into  a 
tenancy  from  month  to  month  by  the  fact  that  receipts 
for  rent  paid  state  that  the  letting  is  for  one  month 
only.  When  a  lease  is  to  run  for  one  or  more  years 
''from"  a  certain  day,  the  corresponding  day  in  the 
year  in  which  the  lease  terminates  is  to  be  excluded 
in  compiling  the  duration  of  the  term  unless  there  be 
a  contrary  custom.  A  lease  "to"  a  certain  day  ends 
with  the  expiration  of  that  day.  And  leases  of  doubt- 
ful duration  must  be  construed  favourably  to  the 
tenants.  Thus  if  there  be  a  doubt  on  yhich  of  two 
days  a  lease  is  to  terminate,  the  lessee  may  make  the 
election.  A  tenant  in  undisturbed  possession  of  the 
leased  premises  cannot  deny  the  title  of  his  landlord. 

By  statute  in  New  York  agreements  which  do  not 
specify  the  duration  of  occupation,  extend  to  the  first 
day  of  May  next  after  possession  is  taken.  Obvious 
mistakes  of  the  parties  in  computing  the  term  or  speci- 
fying the  day  of  termination  are  judicially  disregarded. 
A  lease  for  a  fixed  term  which  gives  the  lessor  or  the 
lessee  an  option  to  continue  the  tenancy  for  an  addi- 
tional term  terminates  with  the  expiration  of  the  term 
first  mentioned  unless  the  option  is  exercised.  Either 
party  may  be  given  the  option  of  terminating  the  lease 
on  notice.    The  term  continues  in  such  a  case  until 


i86     BUSINESS  MAN'S  LEGAL  ADVISER 

the  option  is  exercised  by  giving  notice  of  an  inten- 
tion to  terminate  the  lease.' 

6.  Any  language  will  suffice  showing  the  intention 
of  the  parties.  The  words  generally  used  to  indicate 
this  are:  "grant,"  "demise,"  and  "to  farm  let." 
They  have  a  technical  and  extended  meaning,  and 
imply  that  the  term  of  a  lease  is  to  begin  presently, 
and  not  at  a  future  date,  or  on  a  contingency.  Neither 
of  them  is  indispensable  to  constitute  a  valid  lease. 
A  lease  should  describe  clearly  the  premises  that  are 
to  be  leased,  for  a  defective  description  cannot  be 
cured  by  outside  or  additional  evidence. 

The  lease  of  a  building  is  a  lease  of  the  land  on  which 
the  building  stands.  Whether  a  particular  place  is  a 
part  of  the  leased  premises  depends  partly  on  the 
question  of  boundary,  but  more  especially  on  the 
question  of  intention.  But  a  reservation  in  the 
lease  must  be  so  construed  as  to  enable  the  lessee  to 
conduct  the  business  for  which  he  leased  the  premises. 
With  the  lease  of  a  part  of  the  building  there  passes  as 
an  incident  everything  reasonably  necessary  to  its 
enjoyment.  Thus  if  a  building  consist  of  several 
apartments  so  constructed  that  all  occupants  must  enter 
and  depart  by  the  same  hall  and  stairway,  these  become 
a  way  of  necessity  on  the  lease  of  the  apartments. 

"  A  memorandum  expressing  the  consent  of  the 
owner  that  another  shall  have  immediate  possession 
of  premises,  and  shall  continue  to  occupy  them  at  a 
specified  rent  and  for  a  definite  term,  is  a  sufficient 
lease.     In  general,  any  agreement  under  which  one 

*  24  Cyc,  961. 


MODES  OF  LIMITED  OWNERSHIP     187 

person  obtains  the  right  of  enjoyment  to  property  of 
another,  with  his  consent,  and  in  subordination  to 
his  right,  may  create  the  relation  of  landlord  and 
tenant.  As  between  parties,  an  agreement  may  be 
a  lease,  while  as  to  third  parties  it  may  be  con- 
strued as  a  building  contract.  Where  an  instru- 
ment has  the  effect  of  giving  a  holder  an  exclusive  right 
of  occupation  of  the  land,  although  subject  to  certain 
reservation,  or  to  a  restriction  of  the  purpose  for  which 
it  may  be  used,  it  is  in  law  a  lease  of  the  land  itself. " ' 
7.  Sometimes  a  lease  is  made,  or  at  other  times  an 
agreement  for  a  lease,  and  the  parties  themselves  have 
not  always  known  which  thing  they  intended  to  do. 
To  the  reader  this  question  may  seem  to  be  very  near 
the  edge  of  the  absurd,  but  as  the  language  used  in  a 
lease,  or  in  an  agreement  for  a  future  lease,  is  often 
nearly  the  same,  the  difficulty,  in  truth,  does  arise. 
It  can  hardly  appear  in  agreements  that  are  to  go 
into  immediate  operation,  but  only  in  those  that  are 
to  be  operative  at  a  future  time.  The  question  is 
important  because,  if  the  agreement  is  a  lease,  then 
it  cannot  be  varied  or  contradicted  by  other  evidence, 
any  more  than  any  other  completed  contract  or  agree- 
ment. On  the  other  hand,  if  the  agreement  be  simply 
/or  a  lease,  then,  from  its  very  nature,  it  is  incomplete 
and  is  open  for  revision.* 

»  24  Cyc,  901. 

*  "The  importance  of  this  distinction  between  agreements  to  lease,  and 
agreements  which  operate  as  leases,  results,  among  other  things,  from  this: 
that,  as  an  executed,  written  contract  must  speak  for  itself,  and  cannot  be 
added  to  or  corrected  by  parol,  if  the  agreement  be  held  to  be  a  lease  the  par- 
ties will  be  bound  by  it,  as  written,  with  its  implied  as  well  as  its  express  cove- 
nants and  stipulations;  whereas,^  if  it  is  a  mere  agreement  for  a  lease,  these  may 
be  rectified  or  supplied  before  it  is  executed,  or  the  party  may  refuse  to  execute 
it."     I  Washburn,  {  622,  p.  362. 


188     BUSINESS  MAN'S  LEGAL  ADVISER 

The  test,  whether  the  agreement  is  a  lease,  or  only 
an  agreement  for  a  lease,  is  its  completeness/  If 
nothing  is  left  incomplete  then  the  agreement  is  a 
lease;  otherwise  it  is  stamped  with  the  other  character. 
Thus,  an  agreement  to  let  land  to  a  company  to  place 
sand  thereon,  for  a  given  period,  was  held  to  be  an 
actual  letting,  and  binding  the  parties  thereto.  In 
another  case  A  wrote  to  B  that  he  would  take  his  house 
at  a  specified  rent  for  two  years  if  he  would  put  a 
furnace  therein,  and  B  replied  that  he  would  accept 
the  offer,  and  at  once  put  a  furnace  into  the  house 
before  the  date  was  fixed  for  the  term  to  begin.  This 
was  held  to  be  a  lease,  and  not  a  mere  offer  for  one. 
One  more  illustration:  A  proposed  to  B,  in  writing, 
to  hire  a  shop  of  a  specified  size  at  a  fixed  rent  on  a 
piece  of  designated  land,  if  he  would  erect  the  building. 
B  accepted  the  offer  and  built  the  shop,  and  A  took  pos- 
session. B  did  not  own  the  land  and  did  not  complete 
the  shop  within  the  time  stipulated.  Nevertheless 
by  accepting  the  offer  and  occupying  the  shop,  the 
agreement  became  effective.  It  may  be  added  that 
the  lessor's  failure  to  complete  the  building  by  the 
time  fixed  in  the  agreement  would  have  released  the 
lessee,  had  he  wished,  from  his  obligation. 

8.  To  make  a  valid  lease  of  course  the  parties  must 
be  legally  competent.  If  one  of  them  is  non  compos 
mentis  the  lease  is  void  unless  it  has  been  executed. 

(a)  Leases  made  by  a  minor  are  not  void,  but  may 
be  avoided.  To  have  this  effect  some  positive  act 
on  his  part  is  required.    A  lease  may  be  disaflirmed  or 

t.*  iWashbum,  §  621,  p.  361. 


MODES  OF  LIMITED  OWNERSHIP     189^ 

avoided  by  a  minor  before  he  attains  his  majority, 
though  the  rule  on  this  subject  is  not  uniform  in  all 
states. 

(b)  A  guardian  may  lease  his  minor's  land  during  the 
period  of  his  minority.  Were  the  lease  made  for  a  longer 
period  the  ward  cotdd,  if  he  pleased,  after  attaining 
his  majority,  have  it  set  aside  for  the  excess.  A  lease 
made  by  a  guardian  may  be  set  aside  or  defeated  by  a 
new  guardian.  This  principle  is  recognised  in  several 
states.  The  same  rule  applies  to  guardians  of  insane 
persons.  A  lease  terminates  on  the  death  of  a  ward, 
whatever  may  have  been  the  terms.  Whether  it 
would  bind  the  lessee  for  the  original  term,  if  the  heirs 
of  the  ward  should  choose  to  affirm  the  lease,  is  an  un- 
settled question.  A  parent  has  not  the  same  right  as 
a  guardian  to  lease  or  deal  with  the  land  of  his  minor 
child. 

(c)  Executors  and  administrators,  who  have  a  lease 
coming  to  them  as  a  part  of  the  possessions  belonging 
to  the  deceased,  may  dispose  of  the  whole  or  carve  out 
smaller  estates  or  interests  by  underletting.  If  there 
be  two  or  more  executors,  a  lease  or  transfer  of  the  term 
by  one  of  them,  if  purporting  to  be  of  the  entire  in- 
terest, will  pass  the  same. 

(d)  Trustees  who  have  a  legal  ownership  of  lands 
may  lease  them  to  any  extent,  as  this  is  a  right  incident 
to  their  ownership  of  them.  Corporations  also  can 
lease  their  lands  either  with  or  without  a  seal. 

(e)  A  single  member  of  a  partnership  cannot  make  a 
valid  lease  of  partnership  land.  On  one  occasion  a 
partner  leased  his  estate  to  the  partnership,  which  was 


igo     BUSINESS  MAN'S  LEGAL  ADVISER 

afterward  dissolved  by  the  death  of  a  member.  This 
event  terminated  the  lease.  A  different  rule  would 
have  applied  had  the  lease  been  from  a  third  person. 

9.  Passing  from  persons  to  property,  we  may  inquire 
■what  can  be  leased.  Besides  land,  various  interests 
therein  may  be  leased;  for  example,  the  right  of  wharf- 
age, the  right  of  flowing  another's  land  with  water, 
rights  of  way,  and  the  like.  But  a  widow  cannot  lease 
her  right  of  dower  before  it  has  been  set  out  to  her. 

While  a  single  room  or  an  entire  floor  may  be  let 
for  lodgings  and  in  a  way  to  become  a  separate  tene- 
ment of  the  lessee,  an  ordinary  agreement  for  board 
and  lodging  in  a  house  by  which  the  keeper  retains 
the  legal  possession  and  care  of  the  whole  house  does 
not  create  the  relationship  of  landlord  and  tenant.' 

10.  Of  course,  a  lease  cannot  be  effective  unless  it 
has  been  accepted,  which  is  often  presumed.  This 
question  can  hardly  arise  about  a  lease  that  is  to  go 
into  immediate  execution,  but  it  may  in  regard  to  a 
renewal.  Thus,  a  tenant  had  a  lease  for  three  years, 
with  a  right  to  hold  for  two  years  on  the  payment  of 
a  larger  rent.  Having  paid  the  larger  rent  for  one  or 
two  quarters  of  the  second  period,  it  was  held  that 
both  parties  were  bound  for  the  extended  period. 

A  lease  takes  effect  only  from  its  delivery  and  not 
from  its  date,  and  there  can  be  no  delivery  without 
an  express  or  implied  acceptance.  While  delivery 
implies  a  manual  transfer  of  possession  from  one  per- 
son to  another,  yet  if  the  lessee  acts  by  formal  consent, 
or  unequivocal  acts  as  by  entering  into  possession,  this 
*  24  Cyc,  879. 


MODES  OF  LIMITED  OWNERSHIP      191 

is  a  sufficient  delivery.  The  delivery  is  complete 
when  the  lessor  has  gone  beyond  his  ability  to  rescind 
or  to  recall  the  agreement.' 

n.  A  lease,  like  any  other  conveyance  of  real  estate, 
must  be  recorded  in  order  to  bind  subsequent  pur- 
chasers or  creditors.  Not  all  leases  though,  only  those 
that  are  to  run  for  a  period  usually  of  five  years  or 
longer.  This  period,  says  Washburn,'  in  Massachu- 
setts is  seven  years,  in  Kentucky  five.  New  Hampshire 
seven,  Delaware  twenty-five  years,  if  for  a  fair  rent 
accompanied  by  possession;  in  Maine  seven  years, 
in  Michigan  the  same,  in  Ohio  and  New  York  three, 
in  Rhode  Island  one,  and  in  North  Carolina  all  leases 
required  to  be  in  writing  must  be  recorded. 

12.  A  lease  made  for  an  unlawful  purpose  is  void. 
For  example,  the  lease  of  premises  for  the  manufacture 
and  sale  of  spirituous  liquors,  in  a  state  where  the  busi- 
ness is  condemned  by  law,  would  be  invalid.  But  the 
mere  knowledge  on  the  part  of  the  lessor  that  the 
premises  are  intended  to  be  used  for  an  illegal  purpose, 
unless  he  participates  in  the  design,  will  not  render 
the  lease  invalid.* 

Occupation  of  the  premises  by  the  lessee  and  pay- 
ment of  rent  in  accordance  with  the  terms  of  the  lease 
is  usually  held  to  be  a  ratification  by  him  of  an  invalid 
lease.  Likewise  acquiescence  in  the  occupancy  of  the 
premises  by  the  lessee  and  acceptance  of  rent  from  him 
will,  as  a  rule,  amount  to  a  ratification  of  a  void  lease 

>34  Cyc,  905. 

*  I  Wasbbum,  §  639,  p.  373.    In  Louisiana  all  leases  must  be  recorded. 
I  Nor  can  the  lessor  plead  the  immorality  of  her  calling  as  a  defence  against 
the  payment  of  rent.     Lyman  v.  Townsead,  34  La.  Aon.,  265. 


192     BUSINESS  MAN'S  LEGAL  ADVISER 

but  some  new  promise  or  condition  is  necessary.  Nor 
will  mere  acceptance  of  rent,  without  any  other  act 
of  confirmation,  always  operate  as  a  ratification  of  a 
defective  or  void  lease  on  the  part  of  the  lessor. 

13.  (a)  A  lease  usually  contains  both  express  and 
implied  covenants.  By  an  implied  covenant  is  meant 
one  created  by  law  without  any  special  words  or  lan- 
guage. The  first  that  may  be  mentioned  is  a  covenant 
or  agreement  for  quiet  enjoyment.  The  law  assumes 
that  the  lessor,  at  the  time  of  leasing  his  premises,  is 
the  legal  owner  and  possessor;  if  the  fact  be  otherwise 
he  must  make  good  to  the  tenant  all  damages  accruing 
to  him  from  the  loss  of  possession. 

(b)  There  is  also  an  implied  covenant  against  waste. 
The  lessee  assumes  an  implied  obligation  to  use  the 
premises  in  a  proper  manner  and  to  keep  the  build- 
ings in  repair,  and,  failing  so  to  do,  he  is  liable,  in  an 
action  called  waste,  for  the  damages  sustained  by  the 
lessor.  If  there  be  no  express  agreement  concerning 
repairs,  the  lessor  is  not  bound  to  make  any;  but,  if  he 
imdertakes  or  agrees  to  make  them,  he  is  bound  by  an 
implied  covenant  to  do  this  in  a  workmanlike  manner, 
without  injuring  the  lessee.  The  courts  tend  strongly 
to  minimise  all  implied  covenants  or  agreements,  thus 
rendering  the  written  lease  the  entire  agreement  be- 
tween the  parties.  Such  a  change  in  the  legal  attitude 
toward  the  parties  is  more  in  harmony  with  the  spirit 
of  the  age  and  with  the  principles  of  justice. 

(c)  Another  distinction  concerning  these  covenants 
must  be  noted.  Some  of  the  covenants  are  personal 
and  bind  only  those  who  made  them;  others  run  with 


MODES  OF  LIMITED  OWNERSHIP     193. 

the  land  and  bind  other  persons  beside  their  makers. 
Implied  covenants  are  always  personal;  express 
covenants  may  nm  with  the  land,  or  may  not. 

(d)  In  general,  a  covenant  that  is  beneficial  only  to 
the  owner  of  the  land,  and  that  relates  to  its  preserva- 
tion or  improvement,  runs  with  the  land.  The  most- 
important  covenants  possessing  this  peculiar  trans- 
missible character  are  those  for  quiet  enjoyment,  to 
pay  rent,  insure,  repair,  deliver  the  estate  in  good 
condition,  to  reside  on  the  premises,  and  to  pay  the 
taxes.  Other  covenants  of  this  nature  are  those  by  a 
mill-owner  not  to  let  any  other  place  or  site  for  a  mill 
of  the  same  kind;  or  by  a  lessee  not  to  sell  any  wood  or 
timber,  or  to  cultivate  the  land  in  a  particular  manner,, 
or  to  raise  only  certain  crops,  or  only  on  alternate  years. 
These  are  good  illustrations  of  covenants  that  run 
with  the  land,  binding  both  parties  to  the  lease  for 
their  performance. 

(e)  Covenants  may  run  with  a  part  of  the  land,  and 
not  with  the  entire  portion. 

(/)  Who  are  or  who  may  be  affected  by  the  covenants 
that  run  with  the  land?  An  assignee  or  a  lessee  would 
be  bound,  but  not  a  sublessee,  and  as  he  is  not,  of  course 
his  assignee  would  not  be.  On  the  other  hand,  the 
assignee  of  the  lessor  is  bound. 

An  agreement  to  keep  a  house  in  repair  runs  with  the- 
land  and  binds  the  assignee,  though  he  is  not  named. 
But  a  covenant  to  build  a  new  house  will  not  bind  an 
assignee  unless  he  is  named,  though,  as  another  has. 
remarked,  "The  good  sense  of  this  is  not  very  easily 
discoverable."    Yet,  as  we  noted  when  setting  out  ort 


194     BUSINESS  MAN'S  LEGAL  ADVISER 

our  legal  travels,  there  are  many  things  in  the  law  which 
do  not  square  with  sense;  hence  the  need  of  legal  knowl- 
edge to  escape  the  pitfalls, 

14.  Often  blank  forms  are  used  in  making  leases, 
and  sometimes  the  printed  and  written  agreements  or 
clauses  are  inconsistent  with  each  other.  When  they 
are,  the  written  clauses  are  regarded  as  containing 
the  true  statements  and  intentions  of  the  parties,  and 
the  printed  ones,  so  far  as  they  are  inconsistent,  must 
give  way  to  the  other. 

15.  A  lessee  is  bound  by  an  implied  covenant  to  use 
the  premises  in  a  proper  and  husbandlike  manner. 
What  such  husbandry  may  be  depends  largely  on  the 
place  where  the  land  is  situated.  Different  rules,  ob- 
viously, exist  in  different  places.  The  tenant  is  bound 
to  keep  the  soil  in  a  proper  state  of  cultivation,  to 
preserve  the  timber,  to  support  and  repair  the  build- 
ings; neglect  of  his  duty  in  these  matters  wUl  render 
him  liable  in  an  action  for  waste.  Of  course,  the  im- 
plied covenant  or  agreement  may  be  modified  or  set 
aside  by  an  express  agreement.  In  one  case  a  lease  of 
a  farm  was  dated  July  i8th,  before  the  grass  growing 
thereon  was  cut.  The  lease  was  for  five  years,  and  in 
the  fifth  year  the  tenant  cut  the  grass  on  the  tenth 
of  July,  thus  taking  six  crops  of  grass  from  the  farm 
during  his  term  of  five  years.  This  was  held  to  be  a 
violation  of  the  rules  of  good  husbandry.  In  Illinois 
it  is  the  duty  of  the  tenant  to  pay  all  the  taxes  during 
his  tenancy;  failing  to  do  this  followed  by  its  public 
sale  and  becoming  the  purchaser,  he  cannot  hold  the 
land  against  the  owner  of  the  inheritance.      Where  a 


MODES  OF  LIMITED  OWNERSHIP      195 

lessee  guarantees  to  pay  the  taxes  assessed  on  the 
leased  premises  and  fails  to  do  so,  the  lessor  can  recover 
the  amount  assessed,  although  he  himself  may  not  have 
paid  them.  Furthermore,  were  the  premises  destroyed 
after  the  day  of  levying  the  tax  and  before  the  time  of 
payment  had  expired,  the  entire  tax  would  be  re- 
coverable under  the  lessee's  covenant. 

In  a  lease  of  real  property  containing  machinery 
and  other  fixtures,  questions  often  arise  concerning 
its  use,  and  the  intention  of  the  parties  to  the  lease. 
A  factory  with  its  machinery  which  is  leased  carries 
the  right  to  the  use  of  the  water-power  for  the  opera- 
tion of  the  mill.  But  the  lease  of  a  store  or  warehouse 
does  not  imply  that  the  building  is  safe  or  well  built, 
or  that  it  is  fit  for  any  particular  use.  And  the  lease 
of  a  salt-well  would  be  no  assurance  or  measure  of 
its  capacity. 

When  the  lease  is  silent  concerning  the  use  of  the 
premises  by  the  lessee,  he  has  the  right  to  use  them  as 
he  pleases,  not  materially  different  from  that  in  which 
they  are  usually  employed,  or  to  which  they  are  adapt- 
ed. But  the  lessee  must  use  the  property  in  a  proper 
and  tenantlike  manner,  without  exposing  the  buildings 
to  ruin  or  committing  any  waste.  A  tenant  of  farm- 
ing land  under  a  lease  which  does  not  restrict  the  use 
he  is  to  make  of  the  land  has  a  right  to  pasture  cattle 
thereon,  and  to  make  any  other  reasonable  and  usual 
use  of  the  land  he  may  see  fit.  By  such  a  lease  the 
law  implies  that  it  shall  be  used  for  that  purpose,  that 
no  waste  shall  be  committed  and  that  it  shall  be 
farmed  in  a  husbandlike  manner. 


196     BUSINESS  MAN'S  LEGAL  ADVISER 

Manure  in  the  ordinary  course  of  husbandry  is 
the  property  of  the  lessor  and  belongs  to  the  farm  as  an 
incident  necessary  for  its  improvement  and  the  tenant 
has  no  right  to  sell  it  or  apply  it  to  any  other  use. 
Manure  made  in  livery  stables,  or  in  buildings  un- 
connected with  agricultural  property  belongs  to  the 
tenant/ 

16.  In  many  states,  unless  there  is  some  restriction 
in  the  lease,  a  tenant  may  assign  the  lease  or  sublet 
the  premises.  Furthermore,  an  assignment  of  a  lease 
that  must  be  in  writing  to  satisfy  the  statute  of  frauds 
must  also  be  written. 

17.  A  lease  may  be  so  drawn  that  neither  party  can 
assign  nor  transfer  it.  To  be  non-assignable  the  terms 
must  be  very  explicit;  otherwise,  on  the  death  of  the 
lessee,  his  executors  or  administrators  can  assign  the 
term.  In  like  manner  a  lease  may  be  assigned  by  the 
process  of  insolvency.  By  such  an  assignment  the 
estate  passes,  discharged  of  all  covenants  or  agreements 
not  to  assign,  if  the  proceedings  are  bona  fide.  Again, 
the  retirement  of  a  member  of  a  partnership,  and  the 
taking  of  his  place  by  another,  are  not  a  breach  of  the 
covenants  or  agreements  not  to  assign  the  lease. 

18.  A  transfer  by  a  lessee  of  the  whole  or  of  a  part 
of  the  estate,  for  a  part  of  the  time,  is  a  sublease  and 
not  an  assignment.  In  such  a  case  the  original  lessor 
has  no  right  of  action  against  the  sublessee,  for  he  is 
liable  only  to  his  lessor.  But  a  transfer  of  the  whole 
or  a  part  of  the  leased  premises  by  the  original  lessee 
for  the  residue  of  the  term  is  an  assignment.    In  such 

*  34  Cyc,  1066. 


MODES  OF  LIMITED  OWNERSHIP     197 

a  case  the  tenant  having  underlet  a  part  of  the  premises 
for  a  part  of  the  time,  and  then  assigned  to  a  third 
person  all  his  interest  in  the  original  lease,  his 
assignee  could  recover  the  rent  from  the  one  to 
whom  his  assignor  had  rented  a  portion  of  the 
premises. 

Whether  a  lessee,  in  parting  with  his  interest  in  his 
lease,  assigns  or  underlets,  depends  on  the  question 
whether  he  has  parted  with  his  entire  interest.  If  he 
has  then  it  is  an  assignment.  If  the  period  is  to  expire 
before  the  expiration  of  the  original  lease,  then  it  is  a 
subletting.  The  retaining  of  the  smallest  interest  has 
the  effect  of  creating  simply  an  underlease.  In  the 
case  of  a  lessee  who  leased  to  another  the  premises  for 
the  residue  of  his  term,  reserving  the  right  to  recover 
possession  on  the  last  day,  there  was  an  underletting 
and  not  an  assignment.  In  another  case,  that  of  a 
lessee  who  transferred  his  entire  interest,  reserving  a 
rent  larger  than  that  specified  in  the  original  lease^ 
with  the  right  of  entry  in  case  of  non-payment,  there 
was  an  xmderlease  and  not  an  assignment.  In  short, 
a  lessee  who  reserves  to  himself  the  right  of  lentry  for 
any  period,  however  short,  or  \mder  any  condition 
in  the  event  of  the  non-payment  of  the  lease,  simply 
underleases  his  term. 

19.  A  tenant  at  will*  has  no  estate  he  can  assign  ta 
another  whereby  a  relationship  can  be  established 
between  the  original  lessor  and  such  a  tenant. 

20.  The  respective  rights  between  the  original  lessor 
and  the  tenant  of  a  lessee  or  sublessee  are  well  settled. 

1  One  whose  tenancy  ceases  at  the  will  or  order  of  the  lessor  or  landlord. 


igS     BUSINESS  MAN'S  LEGAL  ADVISER 

The  lessor  cannot  sue  the  undertenant  nor  recover  rent 
of  him  in  any  form  of  action. 

21.  Should  a  lessor  sue  a  sublessee  in  possession  of 
leased  lands  to  recover  rent,  the  latter  will  be  presumed 
to  be  the  assignee  of  the  lessee  until  the  contrary  ap- 
pears. A  surrender  by  the  lessee  to  the  lessor  which  is 
accepted  by  him  during  the  occupancy  of  another  is 
conclusive  evidence  that  the  lessee,  and  not  the  occu- 
pant, holds  the  premises  under  the  lessor. 

22.  As  the  lessee  may  assign  or  underlet  his  interest, 
unless  he  is  forbidden  to  do  so  by  agreement,  in  like 
manner  the  lessor  can  convey  or  assign  his  reversion  in 
the  land  after  the  expiration  of  the  tenancy,  or  interest, 
and  thereby  bring  in  a  new  party.  In  order  to  give 
effect  to  this  transfer  by  the  lessor,  it  is  not  necessary 
that  the  tenant  should  attorn  to  or  acknowledge  such 
grantee  or  assignee  to  render  the  transfer  valid. 

As  a  general  rule,  the  transfer  of  a  reversion  carries 
with  it  the  rent  already  due  and  accruing  therefor. 
It  is  of  little  consequence  how  one  becomes  a  rever- 
sioner as  affecting  his  right  to  recover  rent  of  the 
tenant  or  his  assignee  whenever  it  falls  due. 

If  only  a  part  of  the  reversion  is  conveyed  the  grantee 
or  assignee  may  recover  his  share  of  the  rent,  pro  rata, 
which  is  determined  by  the  relative  values  of  the  re- 
spective portions  of  the  reversion.  This  principle 
concerning  the  apportionment  of  rent  between  several 
assignees  applies  to  a  reversion  that  has  descended  to 
several  heirs.  When  this  event  happens  one  of  them  can 
sue  for  his  part  accruing  after  the  death  of  his  ancestor 
without  considering  the  rights  or  interests  of  the  others. 


MODES  OF  LIMITED  OWNERSHIP     199 

23.  The  rent  and  reversion  may  be  separated  by  the 
lessor  or  owner.  He  may  convey  his  entire  estate,  yet 
reserve  the  rent  to  himself.  Or,  again,  he  may  assign 
the  rent  without  granting  the  reversion,  and  the  as- 
signee may  recover  the  subsequent  accruing  rent  in 
his  own  name  in  an  action  of  debt.  The  rent,  however, 
cannot  be  apportioned  by  the  landlord  to  different 
persons  without  the  tenant's  consent.  Again,  a  lessor 
may  give  or  devise  a  part  of  a  rent  which  will  be  good 
without  the  tenant's  consent,  and  the  devise  may  be 
severed  from  the  reversion. 

When  by  an  assignment  of  a  reversion  the  rent 
passes,  or  vice  versa,  the  assignee  may  sue  in  his  own 
name  for  any  rent  accruing  after  making  the  assign- 
ment. 

The  assignee  of  a  reversion  of  the  land,  or  of  the  rent, 
should  give  notice  of  such  action  to  the  lessee  or  the 
tenant,  otherwise  he  is  protected  in  paying  the  rent 
to  the  lessor  on  his  demand  therefor.  But  no  act 
done  by  the  assignor,  after  the  notice  of  such  an  assign- 
ment has  been  given  to  the  other  party,  will  be  of 
any  avail  to  him. 

The  assignee  of  a  lessee  who  holds  under  a  recorded 
lease  containing  a  mortgage  on  the  premises  is  bound 
to  take  notice  of  it. 

24.  There  is  a  distinction  between  a  special  assign- 
ment of  a  lease  by  a  lessee,  and  an  assignment  by  legal 
process  or  by  operation  of  law.  In  the  former  case 
the  parties  to  the  assignment  are  supposed  to  under- 
stand the  terms  and  to  assent  to  them.  But  no  such 
result  follows  the  assignment  of  a  lease  by  the  bank- 


200     BUSINESS  MAN'S  LEGAL  ADVISER 

ruptcy  of  the  lessee,  for  the  reason  that  the  parties 
into  whose  hands  it  may  come  have  not  previously 
given  their  assent.  Hence,  in  the  latter  class  of  cases, 
the  assignee  has  a  reasonable  time  to  ascertain  whether 
the  lease  can  be  made  available  for  the  benefit  of 
creditors  before  he  is  required  to  make  his  election 
whether  to  accept  the  assignment  or  not.  If  the  as- 
signee accepts  he  can  never  deny  the  validity  of  the 
assignment  in  an  action  by  the  lessor  for  rent,  nor 
can  he  escape  liability  for  abandoning  the  premises 
before  the  lease  has  expired.  An  assignment  of  the 
lease  does  not  change  the  lessee's  liability  under  the 
express  covenants  or  agreements  contained  therein. 

25.  The  lease  of  a  private  residence  is  not  a  warranty 
that  it  is  reasonably  fit  for  habitation.  Nor  can  a 
lessee,  unless  the  lessor  has  misrepresented  the  health- 
fulness  of  a  place,  abandon  it  on  the  discovery  that  it 
is  unhealthful  and  escape  paying  rent.  The  law  does 
presume  that  a  furnished  rented  house  is  not  infested 
with  bugs.  A  learned  law  writer  remarks  that  the  law 
on  this  subject  seems  doubtful,  and  is  confined  strictly 
to  furnished  houses.  We  cannot  help  thinking  that 
the  same  legal  presumption  concerning  the  presence 
of  these  animals  should  not  apply  alike  to  all  furnished 
houses,  to  one  in  the  foulest  part  of  New  York  as  well 
as  to  one  on  Murray  Hill.  Something  besides  loca- 
tion, the  kind  of  people  usually  inhabiting  a  house, 
ought  to  enter  into  the  proper  determination  of  the 
'question. 

As  a  person  who  wishes  to  hire  a  house  or  other 
building  can  usually  inspect  it  before  making  a  lease 


MODES  OF  LIMITED  OWNERSHIP     201 

therefor,  the  owner  is  under  no  implied  duty  that  it 
shall  be  fit  for  the  use  intended  by  the  lessee.  In 
harmony  with  this  rule,  the  mere  omission  to  disclose 
a  known  defect  is  not  a  fraud;  even  the  omission  to 
declare  a  nuisance  dangerous  to  health  or  life  is  not 
the  landlord's  duty.  But,  on  one  occasion,  the  lessor 
was  declared  liable  for  an  injury  arising  from  an  undis- 
closed defect  in  the  floor. 

26.  Unless  the  lessor  expressly  agrees  to  make  re- 
pairs he  cannot  be  held  for  them.  In  some  states, 
however,  he  is  bound  to  keep  the  leased  premises  in 
ordinary  repair.  He  is  not  bound  to  repair  defects 
in  a  building  known  to  the  tenant  when  he  leased  the 
premises.  In  several  states  by  statute  the  lessor  of 
a  leased  building,  intended  for  the  occupation  of  human 
beings,  must  put  it  in  a  condition  fit  for  habitation 
and  make  repairs  that  are  afterward  required.  The 
statutes  are  limited  in  their  appUcation  to  property 
used  for  dwelling-house  purposes  and  do  not  apply 
to  business  property.  And  in  some  states  the  tenant 
is  not  liable  for  repairs  arising  from  accident  not  caused 
by  the  tenant.  ^, 

No  agreement  is  implied  that  the  lessor  will  make 
repairs.  But  when  hallways,  staircases,  elevators, 
etc.,  are  used  in  common  by  other  tenants  of  a  build- 
ing and  are  under  the  control  of  the  landlord,  he  must 
make  the  necessary  repairs.  In  some  states  he  is  not 
liable  for  injuries  to  a  tenant  caused  by  defects  in 
halls  or  stairways  used  in  common  by  several  tenants 
when  the  defects  occur  after  the  beginning  of  the  term 
and  the  landlord  is  guilty  of  no  active  wrong  or  neg- 


202     BUSINESS  MAN'S  LEGAL  ADVISER 

ligence.  The  lessor  of  a  building  let  out  in  stories, 
each  being  in  the  exclusive  possession  of  the  lessee, 
is  not  liable  to  the  lessee  on  one  floor  for  damages 
caused  by  imperfections  in  another  floor  without  the 
lessor's  fault. 

Likewise  the  lessor  of  an  entire  tenement  is  not 
liable  for  injuries  to  the  lessee  or  to  a  subtenant 
through  defects  in  a  hallway  used  in  common  by  all 
the  tenants  since  he  is  not  legally  in  possession  of  it 
and  is  not  obliged  to  make  repairs. 

An  agreement  to  keep  the  premises  in  repair  is 
generally  construed  to  mean  to  keep  them  in  as  good 
repair  as  at  the  beginning  of  the  lease,  but  not  to  make 
repairs  in  the  way  of  substantial  and  permanent 
changes.  By  the  common  law  rule,  which  has  been 
followed  generally  in  this  country,  an  agreement  on 
the  part  of  the  lessee  to  keep  in  good  repair  imposes 
on  him  an  obligation  to  rebuild  the  leased  premises 
if  they  are  destroyed  during  the  term  by  fire  or  other 
casualty,  even  when  he  is  without  fault.  Now,  how- 
ever, in  some  states  by  statute  or  judicial  construction, 
no  agreement  or  promise  by  a  lessee  to  keep  and  leave 
the  leased  premises  in  good  repair  requires  him  to 
rebuild  should  the  premises  be  destroyed  by  fire  or 
other  casualty  without  fault  or  negligence  on  the 
tenant's  part  unless  the  language  of  the  lease  shows 
plainly  that  it  was  the  intention  of  the  parties  that  he 
should  be  so  boimd. 

The  lessor  of  a  water  power  impliedly  agrees  to  keep 
in  repair  the  canal  that  conveys  the  water,  or  the  sup- 
ply of  water  imf ailing.    But  the  grant  of  a  right  to 


MODES  OF  LIMITED  OWNERSHIP     203 

take  water  from  a  well  does  not  bind  the  owner  to 
keep  it  in  repair. 

27.  Should  the  premises  be  destroyed  neither  lessor 
nor  lessee  is  bound  to  rebuild  or  repair,  unless  there  is 
an  express  agreement  in  the  lease  to  that  effect.  But 
if  the  lessee  agrees  to  repair  and  restore  the  premises, 
and  surrender  them  in  good  condition,  he  must  abide 
by  his  covenant.  It  is  said  that  even  the  impossibility 
of  performance  by  the  act  of  a  third  person,  or  by  the 
act  of  God,  afifords  no  excuse  for  its  non-performance. 
It  is  the  party's  folly  that  led  him  to  make  such  a 
bargain  without  providing  against  the  possible  con- 
tingency. 

28.  The  lessee  is  not  absolved  from  paying  rent 
through  the  lessor's  failure  to  make  repairs,  even 
though  he  has  agreed  to  do  so;  nor  will  this  justify  the 
lessee's  abandoning  the  premises.  His  proper  remedy 
is  an  action  against  the  lessor  on  his  agreement. 
In  this  he  can  recover  such  damages  as  he  may  prove 
to  have  sustained  in  consequence  of  the  lessor's  failure 
to  keep  his  agreement. 

29.  Even  though  a  building  is  destroyed  by  fire  and 
the  lessee  is  free  from  fault,  he  is  bound  to  pay  the 
rent,  whatever  may  be  the  condition  of  the  premises, 
unless  relieved  by  agreement  or  statute.  In  applying 
this  principle  a  farmer,  who  sought  to  have  his  rent 
abated  in  consequence  of  the  destruction  of  an  im- 
portant bridge,  failed  in  his  contention.  Nor  would 
an  oral  stipulation  not  to  exact  rent  should  a  building 
bum  down  be  of  any  avail,  for  this  would  contradict 
the  written  agreement,  which  the  court  will  not  permit. 


204     BUSINESS  MAN'S  LEGAL  ADVISER 

And  if  by  specific  agreement  the  payment  of  rent  is 
to  be  partly  or  wholly  suspended  after  the  destruction 
in  part  or  wholly  of  the  premises  by  fire  or  other  acci- 
dent, this  does  not  mean  their  gradual  decay,  and  in 
such  a  case  the  lessee  must  continue  to  pay  rent  as 
before. 

From  this  hardship  the  tenant  has  been  relieved  in 
many  states  by  statute.  This  generally  provides  that 
the  tenant  of  a  building  that  has  become  untenantable 
by  fire  or  gale,  without  his  fault,  is  not  bound  to  re- 
pair, and  may,  if  he  pleases,  surrender  and  abandon  it. 

30.  A  tenant  has  no  right  to  make  material  or  per- 
manent alterations  in  the  leased  premises,  and  since 
the  lessor  has  the  right  to  restrict  the  use  and  enjoy- 
ment of  his  property  when  by  express  stipulation  the 
lessee  is  prohibited  from  making  any  alteration  with- 
out the  consent  of  the  lessor,  the  latter  may  recover 
damages  sustained  by  him  for  alterations  in  the 
premises  without  his  consent  and  to  an  injunction  to 
prevent  the  lessor  from  making  other  alterations.' 

31.  Unless  the  rent  is  payable  in  advance,  or  a  time 
is  subsequently  fixed  in  a  lease,  it  is  not  due  until 
the  end  of  the  year;  if  payable  quarterly,  it  is  not  due 
until  the  end  of  the  quarter.  When  payable  at  a 
particular  date,  it  cannot  be  apportioned  with  respect 
to  a  part  of  the  time  on  such  a  date. 

32.  An  agreement  to  pay  rent  is  not  affected  by  a 
lessor's  agreement  concerning  insurance.  Should  the 
lessor  insure  his  property  and  the  building  be  burned, 
the  tenant  has  no  right  in  equity  to  have  the  money 

>  34  Cyc,  1094. 


MODES  OF  LIMITED  OWNERSHIP     205 

applied  to  rebuild  the  premises,  nor  to  restrain  the 
lessor  from  suing  for  rent  until  the  structure  is  restored. 
But,  if  the  money  is  to  be  applied  by  agreement  to 
repair  or  rebuild,  then  it  is  like  other  covenants  which 
run  with  the  land,  and  the  lessee  is  entitled  to  the 
benefit  of  it. 

:^;^.  When  a  lease  provides  that  the  tenant  may  at 
his  option  have  an  extension  for  a  specified  time  after 
the  expiration  of  the  term,  his  holding  over  after  the 
time  has  expired  is  an  election  for  the  extended  term. 

A  renewed  lease  is  a  new  lease  which  operates  as  a 
surrender  of  the  old  one.  But  a  renewed  lease  may 
be  considered  as  a  continuance  of  the  original  lease  for 
the  protection  of  legal  interests  which,  once  created, 
the  law  will  not  permit  to  be  destroyed.  But  when  a 
lease  is  renewed  under  a  contract  expressly  providing 
that  the  tenant  shall  hold  under  the  original  lease, 
and  subject  to  its  conditions  and  privileges,  it  will 
be  regarded  as  a  continuance  of  the  original  lease  and 
the  rights  and  privileges  of  the  parties  are  to  be  deter- 
mined by  the  terms. 

34.  When  by  the  terms  of  the  lease  the  lessor  has 
the  option  to  renew  the  lease,  or  pay  for  the  lessee's 
improvements,  the  latter  can  make  no  claim  for  their 
value  after  the  lessor  has  exercised  his  option  and  re- 
newed the  lease. 

When  the  option  to  purchase  is  duly  exercised  by 
making  the  election,  the  relation  of  landlord  and  tenant 
ceases  and  that  of  vendor  and  purchaser  is  created, 
the  lessor  is  no  longer  entitled  to  rent,  and  the  lessee 
continues  to  occupy  as  owner. 


2o6     BUSINESS  MAN'S  LEGAL  ADVISER 

35.  (a)  A  lessee  who  is  evicted  or  turned  out  of  the 
premises  by  the  lessor,  or  by  a  person  having  a  still 
better  title,  is  discharged  from  paying  rent  after  such 
unwelcome  treatment.  But  there  can  be  no  eviction 
until  the  tenancy  has  actually  begun. 

(b)  Any  act  done  by  the  landlord,  or  by  his  direction, 
which  lessens  the  value  of  the  premises  to  the  tenant, 
he  may  treat  as  an  eviction.  A  landlord  who  entered 
and  partly  destroyed  a  summer  house  thereby  evicted 
his  tenant.  In  one  case  a  lessor  let  some  strenuous 
pigs  into  groxmds  rented  for  exhibition  purposes,  which 
rooted  it  up,  rendering  it  unfit  for  use;  this  was  an 
eviction. 

To  darken  the  windows  of  leased  premises  by  erect- 
ing a  new  building  is  not  an  eviction,  but  if  the  tenant's 
premises  are  thereby  rendered  imfit  for  use,  he  is 
clearly  justified  in  abandoning  them.  A  curious 
illustration  is  given  —  the  case  of  a  distillery  that  was 
leased  to  a  tenant,  and  his  landlord  prevented 
him  from  getting  a  license  to  run  it.  It  was  useless. 
In  another  case  a  landlord  failed  to  furnish  heat  as 
he  agreed  to  do;  as  the  premises  could  not  be  inhabited, 
the  tenant  was  justified  in  fleeing  from  them. 

More  generally  any  act  by  the  landlord  or  by  his 
direction,  though  not  directly  interfering  with  the 
enjoyment  of  the  premises,  but  rendering  their  occu- 
pation incompatible  with  health  and  comfort,  the 
tenant  may  treat  as  an  eviction.  Thus,  to  establish 
a  smallpox  hospital  next  to  his  grounds  leased  by  a 
tenant,  or  to  deposit  gunpowder  or  create  some  offen- 
sive institution,  saloon,  or  the  like,  that  would  render 


MODES  OF  LIMITED  OWNERSHIP     207 

life  unendurable  to  his  tenant,  would  be  an  eviction. 
Of  course,  whether  the  particular  act  possesses  this 
character  or  not  is  purely  an  inquiry  of  fact  to  be  deter- 
mined in  the  usual  manner. 

(c)  A  lessor  who  enters  and  evicts  the  tenant  wrong- 
fully from  a  part  of  the  premises  suspends  by  his 
conduct  the  entire  rent  until  possession  is  restored. 
An  actual  ouster  from  a  part  may  be  treated  as  an 
eviction  from  the  whole. 

(d)  The  eviction  must  be  done  by  the  lessor  or  by  his 
order,  or  by  a  person  having  a  title  paramount  to  the 
lessor's.  An  act  done  by  a  stranger,  as  the  law  calls 
him,  by  which  is  meant  a  wrong-doer  as  distinguished 
from  one  who  asserts  a  paramount  title,  will  not  justify 
an  abandonment  by  the  lessee.  Thus  the  erection, 
by  an  adjacent  owner,  of  a  wall  that  darkens  the 
windows  of  the  leased  premises  will  not  justify  the 
tenant  in  putting  on  his  hat,  walking  out,  and  declin- 
ing to  pay  further  rent. 

(e)  After  a  tenant's  eviction  from  a  part  of  the 
premises  by  one  who  possesses  a  paramount  title^ 
the  rent  will  be  apportioned  and  must  be  paid  for 
the  remaining  part.  If  the  eviction  is  by  the  lessor 
himself  the  tenant  may  elect  whether  to  abandon  the 
premises  entirely  and  put  an  end  to  his  tenancy  and 
rent  altogether,  or  to  retain  such  part  as  remains,  free 
from  liability  to  pay  any  rent,  so  long  as  the  eviction 
continues. 

Suppose  a  person  is  evicted  by  the  state  in  the  exer- 
cise of  eminent  domain.  Must  he  continue  to  pay 
rent?    In  Missouri  the  rent  ceases;  or,  if  evicted  in 


2o8     BUSINESS  MAN'S  LEGAL  ADVISER 

part,  he  must  pay  rent  in  such  proportion  as  the 
premises  still  occupied  bear  to  the  entire  property 
leased.  In  some  states  he  must  pay  rent  to  his  land- 
lord as  before,  and,  having  done  so,  can  demand  of 
the  public  compensation  for  the  loss  sustained  through 
its  action. 

36.  On  the  expiration  of  a  lease  some  very  nice 
questions  often  arise  between  the  tenant  and  his  land- 
lord concerning  the  removal  of  many  things  called 
fixtures,  which  he  may  have  attached  to  the  premises 
during  his  occupancy.  There  is  no  occasion  for  diffi- 
culty in  drawing  the  line  between  furniture  and  fixtures 
because  the  former  is  clearly  separated  from  the 
building  and  can  be  removed  without  the  slightest 
injury  thereto;  but  fixtures  are  something  attached  to 
the  premises,  although  some  of  them  may  be  used  as 
furniture. 

(a)  Different  rules  apply  to  persons  in  different 
relations.  Thus,  in  the  sale  of  a  piece  of  land  with 
a  house  thereon,  the  law  favours  the  purchaser;  as 
between  these  parties  the  law  regards  as  fixtures  many 
things,  which  are  not  thus  regarded  as  between  a 
landlord  and  tenant. 

(b)  The  principal  rule  to  determine  what  is  a  fixture 
in  every  case  is  that  of  intention;  but  this  rule  is,  at 
best,  an  imcertain  guide.  Unhappily,  after  many 
years  of  judicial  inquiry,  varying  decisions  are  still 
rendered.  As  a  general  rule,  whatever  a  tenant  affixes 
to  the  premises  during  his  occupancy  may  be  removed, 
if  this  can  be  done  without  material  injury  to  them. 
Furthermore,  a  conveyance  by  the  landlord  will  not 


MODES  OF  LIMITED  OWNERSHIP     209 

interfere  with  the  tenant's  right  of  removal  during  his 
tenancy.  But,  if  he  has  not  been  active  and  complied 
with  the  rules  of  law  in  removing  his  own  while  he 
was  in  possession  as  tenant,  his  right  of  removal  is 
gone. 

(c)  For  the  purpose  of  establishing  a  more  practical 
rule  concerning  their  removal,  fixtures  have  sometimes 
been  classified  into  trade  and  agricultural.  This  classi- 
fication, however,  has  not  proved  helpful.  The  mode 
of  annexation  is  another  criterion.  In  England  this 
doctrine  plays  a  prominent  part  in  ascertaining  whether 
the  thing  annexed  to  the  land  is  a  fixture  or  not.  At 
least  three  kinds  of  cases  may  be  readily  imagined  for 
the  application  of  this  principle.  First,  the  tenant 
of  a  mill  may  be  hiring  for  a  long  period,  and  the  struc- 
ture itself  may  be  built  in  a  very  enduring  manner. 
An  oflBce  is  needed,  and  he  may  construct  one  in  har- 
mony with  the  architecture  of  the  other  buildings, 
possessing  an  appearance  of  permanency  in  style, 
kind  of  material,  etc.  Should  he  do  this  a  court  would 
not  be  long  in  deciding  that  the  structure  was  annexed 
with  a  view  to  permanency,  and  therefore  as  a  part 
of  real  estate.  Again,  an  oflSce  may  be  erected  either 
on  blocks  or  in  parts  that  can  be  readily  removed. 
A  court  would  just  as  quickly  decide  that  the  form  of 
structure  indicated  clearly  enough  the  intention  of 
the  tenant  to  remove  it  at  the  end  of  his  tenancy. 
The  third  example  may  be  given  —  that  of  a  structure 
erected  very  cheaply,  and  not  in  harmony  with  the 
other  buildings.  A  court  would  just  as  quickly 
decide  that  the  tenant  had  no  thought  of  removal,  but 


2IO     BUSINESS  MAN'S  LEGAL  ADVISER 

simply  intended  to  leave  it  there  on  his  departure,  as  a 
thing  not  worth  further  notice.  From  these  examples 
it  is  evident  that  the  mode  of  annexation,  which  plays 
such  a  prominent  part  in  the  English  law,  does  not 
afford  a  luminous  rule  for  the  determination  of  the 
question.  In  some  cases  it  will  yield  a  satisfactory 
answer;  in  others  none  whatever. 

(d)  For  fixtures  unlawfully  removed  by  the  tenant 
the  owner  of  the  land  may  maintain  an  action  against 
him  to  recover  the  value  of  them,  which  is  technically 
called  an  action  of  trover,  or  he  can  maintain  an  action 
to  recover  the  things  themselves,  such  being  known 
as  an  action  of  replevin. 

Sometimes  the  question  arises  in  purchasing  fixtures 
with  real  estate — honestly  supposing  that  both  were 
included,  though,  in  truth,  the  fixtures  were  not  — 
whether  the  real  owner  can  recover  them.  If,  for 
example,  a  thing  is  hired  by  a  tenant  and  annexed 
to  the  land,  which  is  afterward  sold  to  a  bona  fide 
purchaser,  can  the  real  owner  recover  the  thing  itself? 
Doubtless,  he  would  have  a  good  claim  against  the 
vendor  or  seller  for  the  value  of  the  things,  but  some 
courts  have  declined  to  give  him  any  other  remedy. 
In  all  cases  in  which  persons  have  notice  of  the  jowner- 
ship  of  fixtures,  they  cannot  be  bona  fide  purchasers 
of  the  same.  It  may  be  added  that,  in  conveying 
land,  an  oral  exception  of  the  fixtures  is  invalid,  be- 
cause such  a  reservation  is  a  contradiction  of  the 
written  deed,  and  no  principle  of  law  is  better  under- 
stood than  that  the  form  of  a  writing  cannot  be  con- 
tradicted by  oral  evidence. 


MODES  OF  LIMITED  OWNERSHIP     211 

(e)  Lastly,  the  silence  of  a  lessee  who  erects  a  build- 
ing on  his  land,  and,  at  the  expiration  of  his  term,  takes 
a  new  lease  of  the  premises  and  says  nothing  about 
the  building,  is  regarded  as  an  abandonment  of  his 
right  to  removal.  It  therefore  becomes  a  part  of 
the  land  itself,  as  the  new  lease  carries  the  building 
with  its  fixtures;  and  the  lessee,  by  accepting  it,  adopts 
this  construction.  Nor  will  equity  interpose  in 
favour  of  a  tenant,  however  expensive  may  have  been 
his  improvements,  who  has  not  removed  them  during 
his  tenancy,  unless  he  has  been  prevented  from  re- 
moving them  by  injunction.  In  such  a  case  he  is 
entitled  to  a  reasonable  time  to  remove  them  after 
its  dissolution. 

if)  A  different  construction  is  put  on  a  lease  that 
terminates  by  the  landlord's  forfeiture.  It  is  said  that 
the  tenant's  right  to  remove  fixtures  is  gone,  whether 
this  occurs  by  the  ending  of  the  lease  or  by  an  entry 
for  forfeiture.  Thus,  a  tenant  who  held  over  after 
the  expiration  of  his  terra  could  not  remove  fixtures 
after  his  landlord  had  actually  entered  on  the  premises. 
The  tenant's  right  to  remove  them  is  incidentally  de- 
termined by  the  landlord's  re-entry.  This  is  the 
clearly  settled  rule;  but  a  tenant  holding  for  an  un- 
certain terra  has  a  reasonable  time  to  remove  them  after 
the  close  of  his  tenancy.  In  one  of  the  cases,  wherein 
a  lessee  was  holding  for  an  indefinite  period,  he  erected 
an  ice-house  and  filled  it  with  ice.  Doubtless,  the 
lessor  was  watching  him,  for  soon  afterward  he  ter- 
minated the  lease.  Nevertheless,  the  tenant  was  per- 
mitted to  sell  the  ice  as  soon  as  he  could,  which  tooli 


212     BUSINESS  MAN'S  LEGAL  ADVISER 

nearly  two  months,  and  then  to  remove  the  house. 
In  other  words,  he  was  given  a  reasonable  length  of 
time  to  secure  his  property.  Again,  an  agreement 
with  the  lessor  whereby  the  lessee  has  the  right  to 
remove  fixtures  at  the  expiration  of  his  term,  implies 
within  a  reasonable  time  afterward.  And  a  tenant  who 
has  been  wrongfully  restrained  from  removing  his 
fixtures  will  also  be  allowed  a  reasonable  time  to  re- 
move them  after  the  restriction  has  been  removed. 

On  the  other  hand,a  tenant  for  an  im  certain  term  who 
terminates  the  tenancy  himself  before  removing  his 
fixtures  loses  his  right  to  retain  them. 

37.  For  an  injury  sustained  by  a  third  party  by  a 
defect  in  the  premises  of  a  tenant,  the  law  presumes 
that  the  tenant,  and  not  the  landlord,  is  responsible. 
But  this  is  only  a  presumption,  which  may  be  set  aside 
by  fact.  The  liability  to  a  third  party  depends  usually 
on  the  question  whether  the  tenant  has  the  entire 
control  of  the  structure  which  caused  the  injury,  or 
is  only  one  of  several  tenants.  For  example,  one  who 
is  travelling  along  the  street,  and  is  injured  by  ice 
or  snow  falling  from  an  awning,  may  recover  from  the 
tenant  who  has  the  sole  control  of  the  building.  If 
the  owner  has  a  general  control,  or  of  the  roof,  or  occu- 
pies a  portion,  he  will  be  liable,  instead  of  the  tenant, 
to  the  injured  person.  For  an  injury  resulting  from  the 
erection  of  the  building  itself,  or  from  a  defect  in  its 
construction,  the  landlord  is  responsible.  Again,  if 
the  leased  premises  are,  at  the  time  of  leasing,  a  nui- 
sance, the  landlord  is  liable  for  creating  it,  though  the 
tenant  may  also  be  liable  for  continuing  the  nuisance. 


MODES  OF  LIMITED  OWNERSHIP     213 

These  principles,  however,  have  been  changed  in  many 
states  by  statute. 

Other  principles  of  similar  nature  may  be  mentioned. 
When  a  person  leases  land  bounded  by  a  street,  which 
the  tenant  agrees  to  keep  in  repair,  and  a  passer  is 
injured  —  by  defective  grading,  for  example  —  the 
tenant  alone  is  liable,  even  though  neither  he  nor  the 
landlord  knew  of  the  defect.  But  neither  is  liable  for 
defects  in  a  highway  caused  solely  by  the  wrongful 
act  of  another;  the  public  alone  is  responsible.  Again, 
a  passer  who  is  endangered  by  an  excavation  made  by 
a  builder  and  afterward  continued  by  a  tenant,  may 
recover  from  either.  Lastly,  one  who  dedicates  to  the 
public  across  his  land  a  way  which  is  accepted,  though 
unsafe,  is  not  responsible  to  a  person  who  is  injured 
in  using  it. 

A  tenant  or  owner  of  land  is  not  responsible  to 
another  who  is  injured  by  an  act  done  without  his 
agency  or  permission.  For  example,  neither  tenant 
nor  owner  could  be  held  for  the  obstructive  act  of  a 
third  person  to  a  watercourse,  causing  injury  to  a  mill- 
owner  below. 

38.  What  rule  applies  to  tenants  in  apartment 
houses?  A  tenant  who  is  injured  from  the  defective 
condition  of  a  part  of  a  house  not  included  within  his 
own  lease,  but  which  he  can  use  in  common  with  the 
other  tenants,  has  no  redress  against  his  landlord. 
On  the  other  hand,  a  landlord  who  has  entire  control 
of  the  defective  part  of  the  house  is  liable  to  his  tenant 
for  any  injury  derived  therefrom. 

A  lessee,  unless  restrained  by  the  terms  of  a  lease, 


214     BUSINESS  MAN'S  LEGAL  ADVISER 

may  use  the  premises  for  any  lawful  purpose  he  may 
choose,  though  this  may  be  different  from  the  purpose 
intended,  if  not  essentially  affecting  or  in  any  way 
injuring  the  premises.  In  one  case  a  person  hired  a 
house  for  a  hotel,  making  no  agreement  concerning  the 
mode  of  its  occupancy,  and  converted  it  into  a  semi- 
nary. The  lessor  had  no  ground  for  complaining. 
On  the  other  hand,  if  the  mode  of  occupancy  is  fixed 
by  a  lease,  the  tenant  may  be  enjoined  from  using  the 
premises  otherwise;  indeed,  a  misuser  may  have  the 
effect  of  working  a  forfeiture  of  the  lease.  The  lessor 
may  expel  him,  as  a  landlord  did  whose  tenant  used 
for  an  auction  room  a  shop  that  was  rented  to  him  for 
the  dry  goods  shopping  business.  Often  though  no 
special  damage  results  from  a  changed  use  of  the  prem- 
ises, the  lessor's  right  to  eject  the  lessee  is  unques- 
tioned. 

39.  Everywhere  courts  are  strict  in  not  declaring  a 
lease  forfeited.  In  other  words,  every  effort  in  har- 
mony with  justice  will  be  made  to  preserve  it.  Thus, 
a  lease  contained  a  covenant  not  to  assign  or  underlet; 
also  a  condition,  that,  if  the  lessee  failed  to  pay  rent 
or  committed  waste,  the  lessor  might  enter  and  expel 
him.  An  assignment  by  the  lessee  was  held  to  be  a 
mere  breach  of  the  agreement,  and  nothing  more. 

Before  a  lessor  can  avail  himself  of  his  right  to  enter 
into  possession  and  terminate  the  lease  because  of  the 
lessee's  failure  to  observe  all  the  agreements  or  cove- 
nants therein,  he  must  do  several  things.  First,  if 
the  reason  for  entering  be  that  the  lessee  has  not  paid 
his  rent  as  promised,  there  must  be  a  demand  when  it 


MODES  OF  LIMITED  OWNERSHIP     215 

is  due  and  payable.  In  like  manner,  if  a  lessee  is 
to  pay  the  taxes,  the  lessor  before  entering  to  enforce 
a  forfeiture  for  neglect  on  the  part  of  the  lessee  to  pay 
them,  must  demand  their  payment.  Again,  this  must 
be  done  at  a  convenient  time  before  sunset.  Lastly, 
the  demand  must  be  made  at  the  most  notorious  place 
on  the  land  —  the  front  door  of  the  dwelling-house  — 
unless  some  other  place  has  been  fixed  by  agreement. 

A  lessee  may  avoid  forfeiture  by  tendering  the  rent 
due  at  any  time  before  midnight  sufficient  to  count  the 
money;  and,  if  no  place  is  fixed  for  making  the  payment 
the  tenant  may  save  a  forfeiture  by  going  on  the  prem- 
ises at  the  proper  time  and  actually  tendering  it 
there. 

In  order  to  save  a  forfeiture  for  non-payment  of 
rent,  if  the  lessor  brings  his  action  of  ejectment  and  the 
lessee  brings  the  money  due  the  lessor  into  court,  it  will 
stay  the  proceedings,  provided  the  failure  to  pay  was 
by  accident  and  not  wilfully  done.  An  illustration 
may  be  given  to  show  the  extent  to  which  courts  will 
aid  parties  who  are  not  in  fault  in  this  regard.  A  lease 
provided  for  the  payment  of  rent  in  Russia  Sables  Iron, 
for  which  the  lessor  had  accepted  money,  for  forty 
years,  without  objection.  At  the  end  of  that  time 
the  lessor  was  overtaken  by  some  freak  and  demanded 
the  iron,  but  there  was  none  in  the  market  and  impor- 
tations had  long  before  ceased.  The  court,  on  the 
application  of  the  lessee,  gave  him  time  to  send  to 
Russia  for  the  iron  before  enforcing  the  forfeiture. 

40.  To  yield  up  a  tenant's  estate  for  life  or  years 
to  the  lessor  is  called  a  surrender,  and  has  the  effect 


2i6     BUSINESS  MAN'S  LEGAL  ADVISER 

of  extinguishing  all  claim  for  rent  that  is  not  due. 
To  do  this  requires  a  deed  or  note  in  writing  in  order 
to  satisfy  the  statute  of  frauds.  Nor  would  this 
effect  be  changed  by  an  oral  agreement  at  the  time  of 
making  the  lease  that  the  lessee  might  surrender  it  at 
any  time  he  chose.  Of  course,  a  lease  that  does  not 
exceed  the  term  for  which  a  parol  lease  can  be  made 
may  be  surrendered  orally. 

Again,  the  lessor  and  lessee  cannot,  by  the  formal 
surrender  of  a  lease,  affect  the  rights  of  a  third  party; 
for  example,  those  of  the  lessee's  subtenants. 

41.  The  effect  of  taking  a  new  lease  before  the 
expiration  of  the  old  one  is  to  work  a  surrender  of 
the  first,  imless  both  leases  can  stand.  In  one  case, 
in  which  the  first  lease  was  to  two  lessees,  and  the  lease 
back  again  was  from  one  lessee  only,  this  did  not 
operate  as  a  surrender.  Again,  when  a  lease  is  by 
one  lessor  to  several  lessees,  one  of  these  cannot 
affect  the  rights  of  his  co-lessees  by  releasing  or  convey- 
ing to  his  lessor. 

An  oral  lease  may  be  substituted  for  an  existing 
lease,  even  though  this  be  under  seal,  if  the  substituted 
lease  is  binding  by  the  statute  of  frauds,  and  is  per- 
fected by  the  lessee's  possession.  In  such  a  case 
the  new  lease  would  work  a  surrender  of  the  old  one. 

Sometimes  a  lease  comes  to  an  end  by  a  merger. 
This  happens  when  a  term  for  years  and  the  following 
estate,  or  immediate  reversion,  meet  in  the  same  per- 
son in  his  own  right,  endowing  him  with  full  power  of 
sale  or  alienation.  This  not  infrequently  happens,  and 
by  such  a  union  of  both  estates,  the  lease  comes  to  an 


MODES  OF  LIMITED  OWNERSHIP     217 

end.    But  estates  that  are  held  in  different  ways  will 
not  merge. 

42.  A  lessee,  in  an  action  brought  to  recover  pos- 
session of  the  premises,  is  not  entitled  to  question 
his  lessor's  title,  nor  the  rent  he  has  promised  to  pay 
in  an  action  for  the  use  and  occupation  of  land.  The 
policy  of  the  law  will  not  permit  a  tenant  to  be  guilty 
of  denying  the  title  of  the  premises  whereon  he  has 
been  living.  Thus,  a  lessee  whose  duty  was  to  pay  the 
taxes  neglected  to  pay  them.  The  land  was  sold  at 
public  sale  and  purchased  by  the  lessee,  but  he  was 
not  permitted  to  set  up  his  title  against  his  landlord. 
The  rule  would  have  been  otherwise  had  he  not  been 
required  to  pay  the  taxes.  Furthermore,  he  has  no 
right  to  complain  of  a  want  of  title  in  his  lessor  so 
long  as  he  is  in  undisturbed  possession. 

The  importance  of  this  rule  is  evident,  for  a  tenant 
is  thereby  prevented  from  acquiring  a  title  by  adverse 
possession  against  his  landlord.  The  rule  is  so  broad 
as  to  prevent  a  tenant,  who  has  enclosed  adjacent  land 
long  enough  to  acquire  a  title,  from  reaping  the  benefit 
of  his  action.  His  landlord,  and  not  himself,  profits 
by  the  acquisition.  In  such  cases,  so  the  courts  de- 
clare, the  tenant  is  acting  for  the  benefit  of  his  landlord 
—  a  kind  of  robber  philanthropist,  stealing  for  his 
landlord's  benefit  instead  of  his  own. 

In  some  cases  a  tenant  has  a  right  to  contest  his 
lessor's  title;  for  example,  after  the  expiration  of  the 
lessor's  title  during  the  tenancy.  For,  in  thus  attack- 
ing the  former  landlord's  title,  the  tenant  is  not  dis- 
puting the  validity  of  the  title  under  which  he  entered. 


2i8     BUSINESS  MAN'S  LEGAL  ADVISER 

In  such  a  case  he  may  also  set  up  an  mdependent 
title  acquired  by  himself. 

43.  Sometimes  land  is  let  on  shares;  when  this  is 
done  different  relations  may  be  established.  The 
land-owner  and  tenant  may  create  the  relationship 
of  landlord  and  tenant,  or  the  very  dissimilar  rela- 
tionship of  partnership.  If  the  intention  of  the  con- 
tract is  that  the  farmer  shall  do  the  work  as  the  servant 
of  the  land-owner,  receiving  for  his  services  a  fixed 
proportion  of  the  crops,  the  contract  is  one  of  hiring 
and  not  a  lease.  Again,  if  the  farmer  is  to  be  his  own 
master,  going  on  the  land  to  plant,  tend,  and  harvest 
the  crops,  which  are  to  be  divided,  then  the  two 
parties  are  not  tenants  in  common,  except  of  the  crops. 
But  if  the  farmer,  instead  of  acting  as  a  licensee,  is 
given  possession  of  the  land,  though  the  rent  is  to  be 
paid  in  produce,  he  is  a  tenant  with  all  the  incidents 
pertaining  to  tenancy. 

Which  of  these  relations  exists  when  land  is  let  on 
shares  must  depend  on  the  construction  of  the  contract. 
Sometimes  these  contracts  are  difficult  to  understand. 
In  one  of  the  cases  the  tenant  was  to  cultivate  and  bag 
the  hop  crop  as  rent  for  the  farm.  The  court  held 
that  the  crop  was  the  sole  property  of  the  land-owner. 
In  another  case  an  agreement  between  the  two  to 
share  profits  was  held  to  be  a  partnership,  because  a 
division  of  profits  necessarily  implied  this  relation. 
There  is  a  large  number  of  cases,  in  which  an  entirely 
different  rule  has  been  declared,  a  division  of  the  profits 
forming,  in  the  mind  of  the  court,  no  proper  test  of 
a  partnership. 


MODES  OF  LIMITED  OWNERSHIP     219 

The  natural  increase  of  stock  leased  with  a  farm 
accrues  to  the  tenant.  To  recover  for  the  death  of 
cattle  in  the  tenant's  possession,  the  landlord  must 
prove  negligence.  If  a  lessee  for  years  of  a  farm  and 
stock  sells  part  of  it  contrary  to  the  lease  the  pur- 
chaser, after  the  termination  of  the  lease  by  agreement 
of  the  parties,  although  within  the  term  named,  is 
liable  to  the  lessor  for  the  stock  so  sold. 

44.  From  a  tenancy  thus  created  we  will  next  con- 
sider a  tenancy  or  estate  created  at  will.  This  exists 
when  a  tenant  has  entered  on  land  for  the  purpose  of 
holding  the  same  during  the  joint  wills  of  both  parties. 
The  relation  is  not  formed  until  the  lessee  has  taken 
actual  possession,  and  it  may  cease  at  the  will  of  either 
party.  To  create  this  relation  no  rent  need  be  fixed, 
no  time  set  for  the  length  of  the  occupation.  "Such 
a  tenancy  cannot  arise  without  an  actual  contract." 
When  it  does  the  tenant  is  entitled  to  a  reasonable 
notice  of  his  landlord's  wish  to  end  the  estate  before 
the  latter  can  begin  an  action  to  regain  possession. 
Thus,  a  tenancy  was  to  exist  for  five  years  unless  the 
lessor  wished  to  build  on  the  land;  if  he  did,  the  lessee 
was  to  quit.  This  agreement,  by  providing  for  a  notice 
concerning  the  lessor's  intention  to  build,  created  a 
tenancy  at  will.  If,  without  giving  the  notice,  the 
lessor  should  enter  and  attempt  to  build,  he  would  be 
a  trespasser. 

45.  A  tenancy  created  by  words  clearly  showing  an 
intention  to  endure  only  by  the  pleasure  of  both  parties 
is  an  estate  at  will,  though  the  rent  may  be  payable  by 
the  year  or  lesser  periods.     If  the  tenant  is  to  pay  the 


220     BUSINESS  MAN'S  LEGAL  ADVISER 

rent  at  certain  intervals,  and  the  lessor  terminates  the 
tenancy  between  them,  he  cannot  require  any  rent  to 
be  paid  from  the  time  of  making  the  last  payment. 
And  the  same  principle  is  applied  when  the  lease  is  by 
parol  and  the  tenancy  is  ended  by  the  lessor  between 
the  rent  days.  Thus,  a  parol  lease  is  for  a  year,  and 
the  rent  is  payable  quarterly.  In  the  interval  between 
two  payments  the  lessor  sells  the  premises  and  the 
purchaser  notifies  the  tenant  to  quit,  which  he 
does  before  another  quarterly  rent  falls  due.  The 
tenant  is  not  liable  for  the  rent  after  the  last 
payment. 

46.  A  tenancy  at  will  may  be  implied  by  the  law. 
Thus,  a  householder  permitted  another  to  occupy  his 
house  free  of  rent.  This  was  a  tenancy  at  will.  In 
another  case  the  owner  of  a  chapel  and  dwelling-house 
placed  a  minister  in  them  as  a  minister  of  a  congrega- 
tion. Another  instance  may  be  given  —  that  of  a 
person  who  is  let  into  possession  of  land  under  a  con- 
tract to  purchase  or  lease  it.  Generally,  a  person 
who,  by  the  owner's  consent  takes  possession  of  land 
without  any  facts  or  reason  showing  an  intention  to 
create  an  estate  from  year  to  year,  is  a  tenant  at  will. 

47.  A  tenant  at  will  cannot  acquire  or  create  an 
estate  that  will  avail  against  the  owner  of  the  land. 
If  the  tenant  leases  it  this  will  be  good  between  him 
and  his  lessee  so  long  as  the  tenant  enjoys  the  premises. 
A  tenant  at  will  who  assigns  his  interest  ends  the 
tenancy,  nor  can  the  assignee  claim  the  rights  of  the 
tenant  at  will  against  the  original  lessor. 

48.  Rent  is  not  always  incident  to  a  tenancy  at  will. 


MODES  OF  LIMITED  OWNERSHIP     221 

It  often  depends  on  circumstances  whether  such  a 
tenant  is  chargeable  for  the  use  and  occupation  of 
the  land  he  is  occupying.  For  example,  should  a 
purchaser  enter  by  virtue  of  a  contract  of  purchase 
and  sale,  which  fails  by  the  vendor's  fault,  the 
vendee  would  not  be  liable  for  the  use  and  occupa- 
tion of  the  land  save  by  express  agreement.  To 
make  the  vendee  liable  it  must  be  shown  that  his  oc- 
cupation was  by  the  purchaser's  permission.  If  he 
is  there  without  this  permission  he  is  liable  only 
as  a  trespasser,  if  at  all.  Again,  a  purchaser  who  is 
in  possession  under  a  contract  to  pvurchase,  and 
refuses  to  perform  his  part,  is  liable  for  using 
and  occup)dng  the  premises,  but  he  is  not  a  tres- 
passer. By  his  refusal  to  perform  his  part  he  annuls 
the  conditional  license  whereby  he  entered,  and  acts 
without  it. 

49.  At  the  expiration  of  the  relation  the  tenant  at 
will  is  entitled  to  the  crops,  but,  if  he  abandons  the 
land  before  they  are  ripe,  he  loses  them,  unless  his 
abandonment  was  forced  by  his  landlord.  Nor  can 
the  latter,  by  conveying  the  land  with  the  growing 
crops,  impair  the  tenant's  right  to  them. 

50.  Any  act  or  declaration  indicating  an  intention 
to  terminate  the  tenancy  is  sufficient  for  that  purpose. 
On  the  part  of  the  lessor  a  notice  to  quit,  the  demand  of 
possession,  an  entry  on  the  land  whether  the  tenant  is 
present  or  not,  the  carrying  off  of  stone  or  trees  against 
the  tenant's  will,  the  sale  or  lease  of  the  land  —  all 
these  acts  clearly  indicate  on  the  part  of  the  lessor,  an 
intention  to  end  the  tenancy. 


222     BUSINESS  MAN'S  LEGAL  ADVISER 

The  death  of  either  party  also  ends  the  estate;  by  the 
lessor's  death,  the  lessee  becomes  a  tenant  at  sufferance. 
Should  the  lessee  die,  his  personal  representative  would 
have  no  right  to  the  possession  of  the  land  after  his 
death.  If  there  be  two  lessors  or  two  lessees  the  death 
of  one  does  not  terminate  the  tenancy. 

In  like  manner  a  judgment  for  possession  against 
the  lessor,  or  an  assignment  of  the  lessor's  estate  under 
a  process  of  insolvency,  would  end  the  lease. 

On  the  part  of  the  tenant  an  assignment  of  his 
interest  would  put  an  end  to  the  tenancy.  It  has  been 
said  that  this  is  not  so  unless  the  landlord  has  notice 
of  it;  and,  until  received,  he  may  treat  the  lessee  as 
his  tenant  and  require  him  to  pay  the  rent. 

Though  a  tenancy  at  will  may  be  ended  in  the 
manner  above  described,  the  law  will  not  treat  the 
lessee  as  a  trespasser,  should  he  enter  within  a  reason- 
able time  after  the  termination  of  his  lease  for  the 
purpose  of  removing  his  crops  or  other  property. 
This  period  is  a  fact  which  must  be  ascertained  in 
every  case  by  itself. 

A  tenancy  from  year  to  year  may  arise  either  ex- 
pressly as  when  land  is  let  from  year  to  year,  or  by  a 
general  oral  lease,  without  any  j5xed  period  and  by  the 
payment  of  annual  rent;  or  such  a  tenancy  may  be 
implied  by  occupying  property  under  a  rent  payable 
yearly,  half  yearly  or  quarterly,  or  when  a  tenant 
holds  over  after  his  term  has  expired  without  having 
entered  into  any  new  contract  and  payment.  Such 
a  tenancy,  however,  will  not  be  created  contrary  to 
the  intent  of  both  parties,  and  payment  of  rent  is 


MODES  OF  LIMITED  OWNERSHIP     223 

simply  evidence  of  intent.  A  lease  for  no  definite 
term,  with  an  annual  rent,  which  may  be  payable 
quarterly  or  monthly  is  a  lease  from  year  to  year. 
Also  when  one  who  enters  into  an  agreement  for  a 
year  is  let  into  possession,  and  pays  the  stipulated 
rent,  a  tenancy  from  year  to  year  is  created.  Gener- 
ally an  oral  lease  of  lands  for  years  is  construed  as 
creating  only  a  tenancy  at  will.  This,  however,may  be 
changed  into  a  tenancy  from  year  to  year  by  payment 
and  acceptance  of  the  rent  annually  and  b^  the  cir- 
cumstances indicating  that  such  a  lease  was  the  in- 
tention of  the  parties. 

A  tenant  for  life  or  for  years  may  lawfully  cut  trees 
needful  for  firewood  and  repairs  to  houses  and  fences 
even  when  he  has  agreed  to  make  repairs  at  his  own 
charge.    But  he  cannot  cut  wood  for  sale. 

52.  A  tenant  from  month  to  month  does  not  become 
a  tenant  from  year  to  year  by  continuing  in  possession 
for  more  than  one  year.  Such  a  tenancy  may  be 
efifected  by  special  agreement,  or  it  may  be  implied 
from  the  mode  of  making  payments.  Thus  a  lease  for 
an  indefinite  term  with  the  payment  of  monthly  rent, 
creates  a  tenancy  from  month  to  month.  A  weekly 
tenancy  is  a  re-letting  of  the  premises  at  the  begin- 
ning of  each  week. 

53.  For  a  long  period  the  courts  have  sought  to 
protect  the  interests  of  lessees  against;  the  sudden 
ending  of  their  tenancy.  To  protect  them  more 
perfectly  the  courts  finally  required  a  notice  to  quit 
from  landlords  to  their  tenants  before  they  could 
be  actually  sxpelled.    This  is  obviously  a  just  re- 


224     BUSINESS  MAN'S  LEGAL  ADVISER 

quirement,  and  the  rule  thus  established  by  the  com- 
mon law  has  been  greatly  extended  by  statute,  both 
in  England,  where  the  rule  was  first  adopted,  and  also 
by  all  the  states  of  the  Union. 

This  notice  is  now  largely  regulated  by  statute, 
.and  there  is  not  much  need  of  saying  more,  except 
to  give  a  brief  description  of  the  kind  of  notices  re- 
quired. 

54.  The  notice  to  quit  must  be  distinguished  from 
the  notice  required  to  be  given  before  undertaking 
summary  proceedings  to  recover  possession  of  land. 
The  object  in  giving  the  notice  is  to  enable  the  tenants 
to  remove  their  crops  and  other  property,  and  thus  be 
less  at  the  mercy  of  their  landlord  than  they  would  be, 
should  he  come  immediately  into  possession  by  his 
own  sole  act,  and  claim  and  retain  everything.  At 
first  the  courts  simply  declared  that  the  notice  should 
be  a  reasonable  one,  but  they  have  since  fixed  more 
definite  times  and  rules  to  govern  the  parties  interested 
in  the  possession  of  real  property. 

55.  Of  course,  it  may  be  fixed  by  agreement,  and  this 
will  prevail  over  any  statute.  Generally,  unless  a 
time  is  thus  fixed,  it  will  be  equal  to  the  interval  be- 
tween the  times  of  paying  rent,  as  by  the  quarter, 
month,  or  week,  or  other  period. 

ilf,  by  agreement,  or  other  construction  of  law,  a 
•tenancy  is  at  will,  though  it  may  have  been  otherwise 
in  the  beginning,  no  notice  to  quit  is  necessary  to  end 
the  relation  unless  required  by  statute.  Again,  if 
the  tenant-relation,  that  once  existed,  has  been  de- 
stroyed, no  notice  is  required  before  the  landlord  can 


MODES  OF  LIMITED  OWNERSfflP     225 

avail  himself  of  his  legal  right  to  recover  possession 
of  the  land.  Thus,  if  a  possessor  of  land  repudiates 
this  relation,  or  sets  up  a  claim  that  is  hostile  to  his 
landlord's,  no  demand  for  possession  or  notice  to 
leave  need  be  given.  Again  notice  to  a  tenant  who  is 
in  possession  imder  a  condition  which  is  fulfilled,  is  not 
required.  For  example,  a  building  was  let  to  a  person 
for  a  school,  so  long  as  he  kept  a  good  one.  Failing 
to  fulfil  this  requirement,  the  owner  had  a  right  to  take 
possession  without  giving  him  any  notice. 

56.  Finally,  an  illustration  of  terminating  a  tenancy 
at  will  without  giving  notice  is  that  of  selling  the  land 
itself.  Such  an  act  is  regarded  as  equivalent  to  a 
notice,  and  the  tenant  must  act  accordingly. 

§  6.  Tenancy  from  Year  to  Year 

1.  Who  is  such  a  tenant. 

2.  Tenancy  founded  on  contract. 

3.  Notice  to  quit. 

4.  Tenancy  cannot  be  changed  against  lessee's  will. 

5.  Nature  of  tenancy. 

6.  Repairs. 

7.  Notice  to  quit. 

8.  Service  of  notice. 

9.  Liability  for  rent. 

10.  Waste. 

11.  Revival  of  tenancy. 

12.  How  lease  is  affected  by  statute  of  frauds. 

I.  A  class  of  estates  has  been  established  with  this 


226     BUSINESS  MAN'S  LEGAL  ADVISER 

name  possessing  essentially  a  modern  character.  They 
are  founded  on  oral  or  parol  leases,  and  usually  require 
six  months'  notice  for  their  termination,'  A  tenant 
who  is  permitted  to  remain  without  such  a  notice 
into  a  second  year  is  regarded  as  having  a  lease  for 
another  year,  and  so  on.  Consequently  such  a  lease 
continues  until  either  party  gives  the  other  the  notice 
required  for  its  termination, 

2.  To  establish  the  tenancy  it  must  appear  that  there 
was  an  entry  or  letting  for  an  indefinite  time,  or  an 
agreement  to  pay  rent  measured  by  the  year  or  frac- 
tional parts,  or  an  actual  payment  if  none  was  origin- 
ally fixed.  Though  the  hiring  for  a  term  within  the 
statute  of  frauds  is  a  tenancy  at  will,  it  is  converted 
into  a  tenancy  from  year  to  year  by  slight  evidence  of 
this  intention  of  the  parties.  If  one  should  merely 
authorise  another  to  go  on  land  and  cut  wood  at  an 
agreed  price,  a  tenancy  from  year  to  year  would  not  be 
established,  and,  consequently,  the  contractor  would 
not  be  entitled  to  a  notice  to  quit. 

3.  When  the  lease  is  for  one  year  or  other  certain 
term  no  notice  to  quit  is  needful,  although,  if  the  tenant 
holds  over,  he  may  be  held  at  the  election  of  the  lessor 
as  a  tenant  for  rent  at  the  rate  originally  fixed. 

4.  Merely  to  suffer  a  tenant  to  hold  over,  without 

'  "The  length  of  time  required  to  be  observed  in  giving  notice  is  regu- 
lated by  statute,  and  generally  varies  with  the  length  of  the  periods  between 
the  payments  of  rent.  If  it  be  a  yearly  rental,  the  English  rule,  which  is  fol- 
lowed in  some  of  the  states,  requires"  six  months'  notice;  while,  in  some  other 
states,  a  shorter  time,  usually  three  months,  is  required.  If  the  rental  be  for 
a  period  less  than  one  year,  as  by  the  quarter,  the  month,  etc.,  then,  as  a  gen- 
eral rule,  the  notice  must  be  for  as  long  a  time  as  the  periods  of  payment.  If 
the  statute  requires  notice,  but  the  length  of  the  notice  is  not  stated,  it  is 
held  that  a  reasonable  notice  must  be  given.  And  the  parties  may  always, 
by  sijecial  agreement,  control  the  length  and  other  provisions  of  the  notice. 
Tiedeman,  Real  Property,  §  21S,  p.  186. 


MODES  OF  LIMITED  OWNERSHIP     227 

any  act  or  assent  on  the  part  of  the  landlord,  will  not 
change  the  relation  into  a  tenancy  against  the  lessor's 
will,  or  prevent  him  from  maintaining  an  action  of 
trespass,  or  ejectment  of  the  tenant  as  a  wrong-doer.* 

5.  A  tenancy  from  year  to  year  has  many  of  the 
qualities  and  incidents  of  a  term  for  years.  The  lease 
may  be  assigned;  the  lessor  may  be  liable  to  the  tenant 
in  the  same  manner  as  if  the  longer  relationship  of 
a  tenancy  for  years  existed  between  them.  Both 
parties  have  the  same  rights  with  respect  to  strangers 
as  in  the  longer  relationship.  The  tenant  is  liable  for 
rent  should  the  premises  burn  down. 

6.  Tenants  from  year  to  year  are  not  bound  to  make 
substantial  repairs  unless  they  have  agreed  to  make 
them.  Independently  of  contract,  it  has  been  said 
that  a  tenant  from  year  to  year  must  keep  the  premises 
wind-  and  water-tight  and  make  fair  tenantable 
repairs,  put  up  fences  or  repair  windows  and  doors 
that  have  become  broken  during  his  occupancy.  But 
he  is  not  liable  for  the  wear  and  tear  of  the  premises, 
nor  answerable  if  they  are  burned  down,  nor  bound 
to  repair  them  if  they  become  ruinous  by  accident, 
nor  to  make  general  repairs. 

7.  Both  parties  are  equally  bound  to  give  notice  in 
order  to  end  the  tenancy.  Of  the  form  of  notice  it 
may  be  said  that,  if  the  lease  has  been  made  by  three 
notice  by  two  will  not  sufl&ce:  all  must  join.  The 
notice  may  be  oral,  unless  the  statute,  or  an  agreement, 
requires  the  notice  to  be  in  writing.  It  must  clearly 
indicate  the  time  for  the  tenancy  to  expire  —  the  end 

i  I  Washburn,  f  8oi,  p.  409. 


228     BUSINESS  MAN'S  LEGAL  ADVISER 

of  the  year,  quarter,  month,  and  the  like.  A  tenant 
who  comes  into  a  house  in  the  middle  of  a  quarter, 
and  pays  rent  on  the  regular  quarter  days,  begins  his 
tenancy  at  the  first  regular  quarter  day,  and  a  notice 
to  quit  must  conform  to  that  time.  Should  entry  into 
different  parts  of  the  premises  be  made  on  different 
days  the  notice  is  considered  as  beginning  on  the  date 
when  entry  was  made  into  the  principal  part  of  the 
estate.  What  this  part  may  be  is  a  question  of  fact 
for  the  jury  to  decide. 

8.  In  interpreting  a  notice  the  courts  seek  to  construe 
it  broadly,  in  order  to  make  it  effective;  and  unless  the 
party  notified  has  been  misled  by  the  time  indicated, 
the  notice  will  be  sufficient.  If  the  tenant  states  to 
the  lessor's  agent  a  day  as  the  end  of  the  lease,  to 
which  the  notice  conforms,  the  tenant  is  bound  even 
though  this  proves  to  be  a  mistake. 

The  notice  must  be  served  on  the  landlord's  own 
tenant,  and  not  on  a  subtenant  of  his  lessee.  In  one 
case  the  premises  consisted  of  a  shop,  and  the  lessee 
took  a  partner,  making,  however,  no  new  contract 
with  the  lessor.  The  notice  was  served  on  the  partner 
during  the  lessee's  absence,  and  this  was  sufficient  to 
determine  the  tenancy.  The  notice  may  be  made 
personally  or  left  at  the  dwelling-house  of  the  tenant 
with  a  servant,  but  not  simply  on  the  premises.  If 
left  in  the  latter  manner  the  service  will  not  suffice 
unless  it  appears  that  the  tenant  actually  received 
it. 

By  the  common  law  rule,  when  the  tenancy  is  yearly, 
notice  must  be  given  six  months  before  the  expiration 


MODES  OF  LIMITED  OWNERSHIP     229 

of  the  year.  When  the  period  is  for  a  shorter  time 
it  is  technically  a  tenancy  from  year  to  year,  though 
the  notice  need  not  be  given  except  for  the  quarter, 
month,  or  week,  during  the  existence  of  the  tenancy. 

9.  The  tenant's  liability  for  rent  continues  imtil 
the  end  of  the  lease,  whether  he  actually  occupy  the 
preniises>.or  not. 

10.  By  committing  voluntary  waste  he  forfeits  all 
right  to  the  notice  to  quit,  for,  by  so  doing,  he  termin- 
ates the  estate. 

11.  A  tenancy  may  be  revived,  after  giving  notice, 
by  accepting  rent  for  a  longer  period.  If  rent  was  due 
at  the  time  of  the  serving  of  the  notice,  and  is  after- 
ward received,  this  does  not  revive  the  lease,  for  it  is 
simply  the  payment  of  a  just  obligation  which  has 
already  accrued. 

12.  By  the  statute  of  frauds  an  oral  or  parol  lease 
can  have  a  legal  effect  only  for  a  short  period.  In 
many  states  the  lease  is  invalid  if  exceeding  three  years 
from  the  time  of  making  it.  In  one  state,  Florida,  an 
oral  lease  may  be  made  for  two  years.  In  much  the 
larger  number  a  lease  for  more  than  a  single  year  is 
contrary  to  or  "within"  the  statute  of  frauds,  as  the 
books  say,  and  invalid. 

§  7.  Tenancy  at  Sufferance 

1.  Who  is  a  tenant  by  sufferance. 

2.  How  tenancy  arises. 

3.  Cannot  deny  his  landlord's  title. 

4.  Cannot  acquire  title  against  landlord. 


230     BUSINESS  MAN'S  LEGAL  ADVISER 

1.  A  tenant  who  has  come  rightfully  into  possession 
of  lands  by  the  owner's  permission,  and  continues  to 
occupy  them  beyond  the  time  for  which  this  was  given, 
is  a  tenant  at  sufferance.  In  the  language  of  the  law, 
he  is  one  who  comes  in  by  right  and  holds  over  without 
right.    Yet  he  is  not  a  trespasser. 

2.  Such  a  tenancy  may  arise  in  various  ways;  for' 
example,  after  a  tenancy  for  years  has  expired,  or  a 
tenancy  has  come  to  an  end  by  the  death  of  the  lessor, 
or  by  his  selling  his  land.  Another  example  may  be 
given  because  it  is  so  common;  a  mortgagor  remains 
in  possession  after  his  land  has  been  sold;  in  short, 
anyone  who  continues  in  possession  without  agreement 
after  the  end  of  a  particular  estate  by  which  he  first 
came  into  possession  is  a  tenant  at  sufferance.  His 
original  possession  in  all  cases,  therefore,  was  by  virtue 
of  an  agreement,  for  when  one  remains  under  any 
other  condition  he  is  not  a  tenant  at  all,  recognised 
by  the  law,  but  simply  an  intruder  or  trespasser  who 
can  be  treated  accordingly.  Indeed,  in  some  states, 
the  law  declares  that  a  tenant  who  seeks  to  remain 
in  possession  after  the  expiration  of  his  lease  may  be 
treated  by  the  lessor  as  a  tenant  from  year  to  year, 
or  as  a  trespasser,  just  as  he  pleases.  The  tenant, 
if  the  land-owner  chooses  to  dignify  him  by  that  name, 
can  exercise  no  election  in  the  matter.  In  other  states 
a  different  rule  prevails,  and  he  is  regarded  as  a  tenant 
at  sufferance. 

3.  Of  course,  he  cannot  deny  his  landlord's  title. 
The  moment  the  parties  agree  to  any  kind  of  holding, 
tenancy  at  will   or  otherwise,   the  former  relation 


MODES  OF  LIMITED  OWNERSHIP     231 

ceases.  Thus,  a  landlord,  by  accepting  rent  from  him, 
would  terminate  the  tenancy  by  sufiferance. 

4.  A  tenant  at  sufferance  cannot  avail  himself  of 
his  position  to  acquire  a  right  to  the  premises  by 
adverse  use  or  possession.  He  is  not  entitled  to  notice 
to  quit  before  the  summary  process  for  his  removal, 
imless  the  statute  required  one  to  be  given.  In  this 
country,  however,  the  statutes  have  been  everywhere 
enacted  for  giving  notice  in  nearly  all  cases  of  tenancy. 
And  this  is  a  safe  practice  to  follow  in  dealing  with 
such  persons. 

§  8.  By  Joint  Tenants  AND  Tenants  IN  Common 

1.  What  is  a  joint  tenancy. 

2.  How  created. 

3.  Abolished  in  many  states. 

4.  What  is  a  tenancy  in  common. 

5.  A  tenant  cannot  convey  a  particular  part  of  the 

estate. 

6.  Nor  acquire  a  title  against  the  others. 

7.  Nor  maintain  an  action  of  trespass  against  another 

tenant. 

8.  Can  recover  his  share  of  the  profits. 

9.  How  the  estate  may  be  divided. 

I.  A  joint  tenancy  is  defined  to  be  the  holding  of  land 
by  several  persons  by  purchase.  Though  the  estate 
may  be  a  single  one  outwardly,  yet,  between  them- 
selves each  is  entitled  to  his  share  of  the  rents 
and  profits,  so  long  as  he  lives,  and,  on  the  death 


232     BUSINESS  MAN'S  LEGAL  ADVISER 

of  one  of  them  the  survivor  or  survivors  take  the  en- 
tire estate. 

2.  A  joint  tenancy  can  be  created  only  by  purchase 
or  act  of  the  parties,  and  not  by  descent  or  act  of  the 
law.  It  must  be  created  by  one  and  the  same  act, 
deed,  or  instrument,  and  have  a  fourfold  unity.  The 
interest  must  be  acquired  by  all,  by  the  same  act, 
begun  at  the  same  time,  and  held  by  the  same  title 
and  possession.  The  most  objectionable  characteristic 
of  a  joint  tenancy  is  the  right  of  survivorship, 
whereby  the  estate  finally  comes  into  the  possession 
of  a  single  individual.  Two  corporations,  therefore, 
cannot  be  joint  tenants. 

3.  This  kind  of  ownership  of  land  is  contrary  to  the 
policy  of  American  law,  and,  in  many  of  the  states, 
has  been  abolished  by  statute.  A  joint  tenant  cannot 
acquire,  by  adverse  title,  the  interest  of  the  others; 
nor  can  he  sue  or  be  sued  alone.  If  anyone  wastes 
the  joint  estate  the  others  have  an  action  against  him. 
Either  tenant  may  convey  his  share  to  a  co-tenant, 
or  even  to  another  who  thereby  becomes  a  joint 
tenant.  Of  course,  a  joint  tenant  cannot  devise 
his  estate.  Lastly,  a  joint  tenancy  may  be  dis- 
solved by  voluntary  partition,  or  by  a  statutory  one 
whenever  the  tenants  themselves  are  not  willing 
to  divide. 

4.  A  tenancy  in  common  exists  when  two  or  more 
persons  hold  land  by  several  and  distinct  titles.  The 
unity  between  them  is  that  of  possession.  Thus,  one 
may  be  an  absolute  owner,  another  for  life;  one  may 
have  acquired  his  title  by  purchase,  another  by  descent; 


MODES  OF  LIMITED  OWNERSHIP     233 

one  may  hold  a  fifth,  another  a  twentieth.    Neverthe- 
less, they  are  tenants  in  common. 

Lastly,  ac  estate  conveyed  to  several  in  unequal 
shares,  in  consequence  of  having  contributed  unequally 
toward  the  purchase,  belongs  to  them  as  tenants  in 
common  and  not  as  joint  tenants. 

5.  Although  each  tenant  can  alienate  his  share,  he 
cannot  convey  any  particular  part  of  the  estate.  Nor 
can  one  of  several  joint  owners  dedicate  any  portion 
to  the  public.  In  like  manner  a  deed  of  one  co- 
tenant's  share,  reserving  his  share  of  the  mines  in  the 
same,  would  be  void.*  He  cannot  create  a  right  of  way 
over  the  common  estate. 

6.  As  their  possession  is  in  common,  no  one  of  them 
can  acquire  a  title  by  adverse  use  against  the  others. 
The  possession  of  one  tenant  in  common  is  deemed  to 
be  the  possession  of  all.  It  is  held  to  be  a  fraud  for 
one  tenant  to  suffer  the  common  property  to  be  sold 
for  taxes  and  to  purchase  it  for  himself.  Should  he 
do  so  the  tax-title  would  inure  to  the  benefit  of  all. 
But,  should  the  interests  of  the  co-tenants  be  separately 
assessed,  there  is  no  rule  to  prevent  one  from  buying 
at  public  sale  the  title  and  interest  of  another. 

7.  A  tenant  in  common  cannot  maintain  an  action 
of  trespass  against  another  co-tenant.  This  can  never 
be  done  unless  the  party  charged  has  done  something 
inconsistent  with  the  rights  of  the  other  co-tenants. 
The  act  must  be  an  eviction  or  destruction  of  the  prop- 
erty, in  order  to  give  the  tenant  the  right  to  proceed 
against  the  others.    But  a  tenant  may  have  an  action 

>  Adam  v.  Briggs  Iron  Co.,  7  Gush.,  361. 


234     BUSINESS  MAN'S  LEGAL  ADVISER 

of  waste  against  his  co-tenant  either  by  statute  or  at 
common  law.  If  one  tenant  should  cut  timber  and  sell 
it,  the  co-tenants  could  recover  their  respective  shares 
of  the  proceeds. 

8.  A  tenant  may  recover  from  his  co-tenant  his 
share  of  the  rents  and  profits  of  the  common  estate.    Of . 
course  there  can  be  no  recovery  unless  the  co-tenant 
has  taken  more  than  his  proper  share. 

Though  a  tenant  cannot  be  made  to  pay  rent  to  his 
co-tenant  for  permissive  sole  occupation  of  the  land, 
he  may  be  held  accountable  for  what  he  receives  as  a 
rental.  If  he  ousts  his  co-tenant  and  occupies  ad- 
versely to  him,  he  is  liable  for  the  rent.  In  Vermont 
one  of  several  co-tenants  converted  the  common  land 
into  a  race-course  and  cut  down  trees  growing  thereon, 
but  was  obliged  to  account  both  for  the  timber  and  for 
the  profits  of  the  race-course. 

Independently  of  statute,  a  tenant  in  common  can- 
not compel  his  co-tenant  to  contribute  to  the  cost  of 
improvements.  But  the  expense  to  which  a  tenant  is 
subjected  for  the  preservation  of  the  common  property 
may  be  ratably  apportioned  among  them  all;  for  ex- 
ample, payments  for  necessary  repairs,  a  mortgage, 
taxes,  assessments,  and  the  like. 

9.  Finally,  the  statutes  in  all  of  the  states  provide 
for  the  partition  of  tenancies  in  conmion. 


The  Country  Lite  Press 
Garden  Cixy,  N.  Y. 


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